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300 | 1989_89-530 | Justice BLACKMUN delivered the opinion of the Court.This case requires us to determine the circumstances under which a social club, in calculating its liability for federal income tax, may offset losses incurred in selling food and drink to nonmembers against the income realized from its investments.IPetitioner Portland Golf Club (Portland Golf) is a nonprofit Oregon corporation, most of whose income is exempt from federal income tax under § 501(c)(7) of the Internal Revenue Code of 1954, 26 U.S.C. § 501(c)(7). [Footnote 1] Since 1914, petitioner has owned and operated a private golf and country club with a golf course, restaurant and bar, swimming pool, and tennis courts. The great part of petitioner's income is derived from membership dues and other receipts from the club's members; that income is exempt from tax. Portland Golf also has two sources of nonexempt "unrelated business taxable income": sales of food and drink to nonmembers, and return on its investments. [Footnote 2] Page 497 U. S. 157The present controversy centers on Portland Golf's federal income tax liability for its fiscal years ended September 30, 1980, and September 30, 1981, respectively. Petitioner received investment income in the form of interest in the amount of $11,752 for fiscal 1980 and in the amount of $21,414 for fiscal 1981. App. 18. It sustained net losses of $28,433 for fiscal 1980 and $69,608 for fiscal 1981 on sales of food and drink to nonmembers. Petitioner offset these losses against the earnings from its investments, and therefore reported no unrelated business taxable income for the two tax years. In computing these losses, petitioner identified two different categories of expenses incurred in selling food and drink to nonmembers. First, petitioner incurred variable (or direct) expenses, such as the cost of food, which varied depending on the amount of food and beverages sold (and therefore would not have been incurred had no sales to nonmembers been made). For each year in question, petitioner's gross income from nonmember sales exceeded these variable costs. [Footnote 3] Petitioner also included, as an unrelated business expense, a portion of the fixed (or indirect) overhead expenses of the club -- expenses which would have been incurred whether or not petitioner had made sales to nonmembers. In determining what portions of its fixed expenses were attributable to nonmember sales, petitioner employed an allocation formula, described as the "gross-to-gross method," based on the ratio that nonmember sales bore to total sales. [Footnote 4] When fixed Page 497 U. S. 158 expenses, so calculated, were added to petitioner's variable costs, the total exceeded Portland Golf's gross income from nonmember sales. [Footnote 5]On audit. the Commissioner took the position that petitioner could deduct expenses associated with nonmember sales up to the amount of receipts from the sales themselves, but that it could not use losses from those activities to offset its investment income. The Commissioner based that conclusion on the belief that a profit motive was required if losses from these activities were to be used to offset income from other sources, and that Portland Golf had failed to show that its sales to nonmembers were undertaken with an intent to profit. [Footnote 6] The Commissioner therefore determined deficiencies of $1,828 for 1980 and $3,470 for 1981; these deficiencies Page 497 U. S. 159 reflected tax owed on petitioner's investment income. App. 48-51.Portland Golf sought redetermination in the Tax Court. That court ruled in petitioner's favor. 55 TCM 212 (1988). The court assumed, without deciding, that losses incurred in the course of sales to nonmembers could be used to offset other nonexempt income only if the sales were undertaken with an intent to profit. The court, however, held that Portland Golf had adequately demonstrated a profit motive, since its gross receipts from sales to nonmembers consistently exceeded the variable costs associated with those activities. [Footnote 7] The court therefore held that"petitioner is entitled to offset its unrelated business taxable income from interest by its loss from its nonmember food and beverage sales computed by allocating a portion of its fixed expenses to the nonmember food and beverage sales activity in a manner which respondent agrees is acceptable."Id. at 217.The United States Court of Appeals for the Ninth Circuit reversed. App. to Pet. for Cert. 1a. The Court of Appeals held that the Tax Court had applied an incorrect legal standard in determining that Portland Golf had demonstrated an intent to profit from sales to nonmembers. The appellate court relied on its decision in North Ridge Country Club v. Commissioner, 877 F.2d 750 (1989), where it had ruled that a social club"can properly deduct losses from a nonmember activity only if it undertakes that activity with the intent to profit, where profit means the production of gains in excess of all direct and indirect costs."Id. at 756. The same court in the Page 497 U. S. 160 present case concluded:"Because Portland Golf Club could have reported gains in excess of direct and indirect costs, but did not do so, relying on a method of allocation stipulated to be reasonable by the Commissioner, we REMAND this case to the tax court for a determination of whether Portland Golf Club engaged in its nonmember activities with the intent required under North Ridge to deduct its losses from those activities."App. to Pet. for Cert. 2a-3a. [Footnote 8]Because of a perceived conflict with the decision of the Sixth Circuit in Cleveland Athletic Club, Inc. v. United States, 779 F.2d 1160 (1985), [Footnote 9] and because of the importance of the issue, we granted certiorari. 493 U.S. 1041 (1990).IIVirtually all tax-exempt business organizations are required to pay federal income tax on their "unrelated business taxable income." The law governing social clubs, however, is significantly different from that governing other tax-exempt entities. As to exempt organizations other than social clubs, the Code defines "unrelated business taxable income" as"the gross income derived by any organization from any unrelated trade or business (as defined in section 513) regularly carried on by it, less the deductions allowed by this chapter which are directly connected with the carrying on of Page 497 U. S. 161 such trade or business."26 U.S.C. § 512(a)(1). [Footnote 10] As to social clubs, however, "unrelated business taxable income" is defined as"the gross income (excluding any exempt function income), less the deductions allowed by this chapter which are directly connected with the production of the gross income (excluding exempt function income)."§ 512(a)(3)(A). [Footnote 11] The salient point is that § 512(a)(1) (which applies to most exempt organizations) limits "unrelated business taxable income" to income derived from a "trade or business," while § 512(a)(3)(A) (which applies to social clubs) contains no such limitation. Thus, a social club's investment income is subject to federal income tax, while the investment income of most other exempt organizations is not.This distinction reflects the fact that a social club's exemption from federal income tax has a justification fundamentally different from that which underlies the grant of tax exemptions to other nonprofit entities. For most such organizations, exemption from federal income tax is intended to encourage the provision of services that are deemed socially beneficial. Taxes are levied on "unrelated business income" only in order to prevent tax-exempt organizations from gaining an unfair advantage over competing commercial enterprises. [Footnote 12] See United States v. American College of Physicians, Page 497 U. S. 162 475 U. S. 834, 475 U. S. 838 (1986) ("Congress perceived a need to restrain the unfair competition fostered by the tax laws"). Since Congress concluded that investors reaping tax-exempt income from passive sources would not be in competition with commercial businesses, it excluded from tax the investment income realized by exempt organizations. [Footnote 13]The exemption for social clubs rests on a totally different premise. Social clubs are exempted from tax not as a means of conferring tax advantages, but as a means of ensuring that the members are not subject to tax disadvantages as a consequence of their decision to pool their resources for the purchase of social or recreational services. The Senate Report accompanying the Tax Reform Act of 1969, 83 Stat. 536, explained that that purpose does not justify a tax exemption for income derived from investments:"Since the tax exemption for social clubs and other groups is designed to allow individuals to join together to provide recreational or social facilities or other benefits on a mutual basis, without tax consequences, the tax exemption operates properly only when the sources of income of the organization are limited to receipts from the membership. Under such circumstances, the individual is in substantially the same position as if he had spent his income on pleasure or recreation (or other benefits) without the intervening separate organization. However, where the organization receives income from sources outside the membership, such as income from investments . . . upon which no tax is paid, the membership receives a benefit not contemplated by the exemption, in that untaxed dollars can be used by the organization to provide pleasure or recreation (or other benefits) to its membership. . . . In such a case, the exemption is Page 497 U. S. 163 no longer simply allowing individuals to join together for recreation or pleasure without tax consequences. Rather, it is bestowing a substantial additional advantage to the members of the club by allowing tax-free dollars to be used for their personal recreational or pleasure purposes. The extension of the exemption to such investment income is, therefore, a distortion of its purpose."S.Rep. No. 91-552, p. 71 (1969), U.S.Code Cong. & Admin. News 1969, pp. 1645, 2100.In the Tax Reform Act of 1969, Congress extended the tax on "unrelated business income" to social clubs. As to these organizations, however, Congress defined "unrelated business taxable income" to include income derived from investments. Our review of the present case must therefore be informed by two central facts. First, Congress intended that the investment income of social clubs should be subject to federal tax, and indeed Congress devised a definition of "unrelated business taxable income" with that purpose in mind. Second, the statutory scheme for the taxation of social clubs was intended to achieve tax neutrality, not to provide these clubs a tax advantage: even the exemption for income derived from members' payments was designed to ensure that members are not disadvantaged as compared with persons who pursue recreation through private purchases rather than through the medium of an organization.IIIPetitioner's principal argument is that it may deduct losses incurred through sales to nonmembers without demonstrating that these sales were motivated by an intent to profit. In the alternative, petitioner contends (and the Tax Court agreed) that, if the Code does impose a profit-motive requirement, then that requirement has been satisfied in this case. We address these arguments in turn.AWe agree with the Commissioner and the Court of Appeals that petitioner may use losses incurred in sales to nonmembers Page 497 U. S. 164 to offset investment income only if those sales were motivated by an intent to profit. The statute provides that, as to social clubs,"the term 'unrelated business taxable income' means the gross income (excluding any exempt function income), less the deductions allowed by this chapter which are directly connected with the production of the gross income (excluding exempt function income)."§ 512(a)(3)(A) (emphasis added). As petitioner concedes, the italicized language limits deductions from unrelated business income to expenses allowable as deductions under Chapter 1 of the Code. See Brief for Petitioner 21-22. In our view, the deductions claimed in this case -- expenses for food, payroll, and overhead in excess of gross receipts from nonmember sales -- are allowable, if at all, only under § 162 of the Code. See North Ridge Country Club v. Commissioner, 877 F.2d 750, 753 (CA9 1989); The Brook, Inc. v. Commissioner, 799 F.2d 833, 838 (CA2 1986). [Footnote 14] Section 162(a) provides a deduction for "all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business." Although the statute does not expressly require that a "trade or business" must be carried on with an intent to profit, this Court has ruled that a taxpayer's activities fall within the scope of § 162 only if an intent to profit has been shown. See Commissioner v. Groetzinger, 480 U. S. 23, 480 U. S. 35 (1987) ("to be engaged in a [§ 162] trade or business, . . . the taxpayer's primary purpose for engaging in the activity must be for income or profit"). Thus, the losses that Portland Golf incurred in selling food and drink to nonmembers will constitute "deductions allowed by this chapter" only if the club's nonmember sales were performed with an intent to profit. [Footnote 15] Page 497 U. S. 165We see no basis for dispensing with the profit-motive requirement in the present case. Indeed, such an exemption would be in considerable tension with the statutory scheme devised by Congress to govern the taxation of social clubs. Congress intended that the investment income of social clubs (unlike the investment income of most other exempt organizations) should be subject to the same tax consequences as the investment income of any other taxpayer. To allow such an offset for social clubs would run counter to the principle of tax neutrality which underlies the statutory scheme.Petitioner concedes that "[g]enerally a profit motive is a necessary factor in determining whether an activity is a trade or business." Brief for Petitioner 23. Petitioner contends, however, that, by including receipts from sales to nonmembers within § 512(a)(3)(A)'s definition of "unrelated business taxable income," the Code has defined nonmember sales as a "trade or business," and has thereby obviated the need for an inquiry into the taxpayer's intent to profit. We disagree. In our view, Congress' use of the term "unrelated business taxable income" to describe all receipts other than payments from the members hardly manifests an intent to define as a "trade or business" activities otherwise outside the scope of § 162. Petitioner's reading would render superfluous the words "allowed by this chapter" in § 512(a)(3)(A): if each taxable activity of a social club is "deemed" to be a trade or business, then all of the expenses "directly connected" with those activities would presumably be deductible. Moreover, Portland Golf's interpretation ignores Congress' general intent to Page 497 U. S. 166 tax the income of social clubs according to the same principles applicable to other taxpayers. We therefore conclude that petitioner may offset losses incurred in sales to nonmembers against investment income only if its nonmember sales are motivated by an intent to profit. [Footnote 16]BLosses from Portland Golf's sales to nonmembers may be used to offset investment income only if those activities were undertaken with a profit motive -- that is, an intent to generate receipts in excess of costs. The parties and the other courts in this case, however, have taken divergent positions as to the range of expenses that qualify as costs of the nonexempt activity and are to be considered in determining whether petitioner acted with the requisite profit motive. In the view of the Tax Court, petitioner's profit motive was established by the fact that the club's receipts from nonmember Page 497 U. S. 167 sales exceeded its variable costs. Since Portland Golf's fixed costs, by definition, have been incurred even in the absence of sales to nonmembers, the Tax Court concluded that these costs should be disregarded in determining petitioner's intent to profit.The Commissioner has taken no firm position as to the precise manner in which Portland Golf's fixed costs are to be allocated between member and nonmember sales. Indeed, the Commissioner does not even insist that any portion of petitioner's fixed costs must be attributed to nonmember activities in determining intent to profit. [Footnote 17] He does insist, however, that the same allocation method is to be used in determining petitioner's intent to profit as in computing its actual profit or loss. See Brief for Respondent 44-46. In the present case, the parties have stipulated that the gross-to-gross method provides a reasonable formula for allocating fixed costs, and Portland Golf has used that method in calculating the losses incurred in selling food and drink to nonmembers. The Commissioner contends that petitioner is therefore required to demonstrate an intent to earn gross receipts in excess of fixed and variable costs, with the allocable share of fixed costs being determined by the gross-to-gross method.Although the Court of Appeals' opinion is not entirely clear on this point, see n. 8, supra, that court seems to have taken a middle ground. The Court of Appeals expressly rejected the Tax Court's assertion that profit motive could be established Page 497 U. S. 168 by a showing that gross receipts exceeded variable costs; the court insisted that some portion of fixed costs must be considered in determining intent to profit. The court appeared, however, to leave open the possibility that Portland Golf could use the gross-to-gross method in calculating its actual losses while using some other allocation method to demonstrate that its sales to nonmembers were undertaken with a profit motive. [Footnote 18]We conclude that the Commissioner's position is the correct one. Portland Golf's argument rests, as the Commissioner puts it, on an "inherent contradiction." Brief for Respondent 44. Petitioner's calculation of actual losses rests on the claim that a portion of its fixed expenses is properly regarded as attributable to the production of income from nonmember sales. Given this assertion, we do not believe that these expenses can be ignored (or, more accurately, attributed to petitioner's exempt activities) in determining whether petitioner acted with the requisite intent to profit. Essentially the same criticism applies to the Court of Appeals' approach. That court required petitioner to include some portion of fixed expenses in demonstrating its intent to profit, but it left open the possibility that petitioner could employ an allocation method different from that used in calculating its actual losses. Under that approach, some of petitioner's fixed expenses could be attributed to exempt functions in determining intent to profit and to nonmember sales in establishing the club's actual loss. This, like the rationale of the Tax Court, seems to us to rest on an "inherent contradiction."Petitioner's principal response is that § 162 requires an intent to earn an economic profit, and that this is quite different from an intent to earn taxable income. Portland Golf emphasizes that numerous provisions of the Code establish Page 497 U. S. 169 deductions and preferences which do not purport to mirror economic reality. Therefore, petitioner argues, taxpayers may frequently act with an intent to profit, even though the foreseeable (and, indeed, the intended) result of their efforts is that they suffer (or achieve) tax losses. Much of the Code, in petitioner's view, would be rendered a nullity if the mere fact of tax losses sufficed to show that a taxpayer lacked an intent to profit, thereby rendering the deductions unavailable. In Portland Golf's view, the parties have stipulated only that the gross-to-gross formula provides a reasonable method of determining what portion of fixed expenses is "directly connected" with the nonexempt activity for purposes of computing taxable income. That stipulation, Portland Golf contends, is irrelevant in determining the portion of fixed expenses that represents the actual economic cost of the activity in question.We accept petitioner's contention that § 162 requires only an intent to earn an economic profit. We acknowledge, moreover, that many Code provisions are designed to serve purposes (such as encouragement of certain types of investment) other than the accurate measurement of economic income. A taxpayer who takes advantage of deductions or preferences of that kind may establish an intent to profit even though he has no expectation of realizing taxable income. [Footnote 19] The fixed expenses that Portland Golf seeks to allocate Page 497 U. S. 170 to its nonmember sales, however, are deductions of a different kind. The Code does not state that fixed costs are allocable on a gross-to-gross basis irrespective of economic reality. Rather, petitioner's right to use the gross-to-gross method rests on the club's assertion that this allocation formula reasonably identifies those expenses that are "directly connected" to the nonmember sales, § 512(a)(3)(A), and are "the ordinary and necessary expenses paid or incurred" in selling food and drink to nonmembers, see § 162(a). [Footnote 20] Language such as this, it seems to us, reflects an attempt to measure economic income -- not an effort to use the tax law to serve ancillary purposes. Having calculated its actual losses on the basis of the gross-to-gross formula, petitioner is therefore foreclosed from attempting to demonstrate its intent to profit by arguing that some other allocation method more accurately reflects economic reality. [Footnote 21] Page 497 U. S. 171IVWe hold that any losses incurred as a result of petitioner's nonmember sales may be offset against its investment income only if the nonmember sales were undertaken with an intent to profit. We also conclude that, in demonstrating the requisite profit motive, Portland Golf must employ the same method of allocating fixed expenses as it uses in calculating its actual loss. Petitioner has failed to show that it intended to earn gross income from nonmember sales in excess of its total (fixed plus variable) costs, where fixed expenses are allocated using the gross-to-gross method. [Footnote 22] The judgment of the Court of Appeals is therefore affirmed.It is so ordered | U.S. Supreme CourtPortland Golf Club v. Commissioner, 497 U.S. 154 (1990)Portland Golf Club v. Commissioner of Internal RevenueNo. 89-530Argued April 17, 1990Decided June 21, 1990497 U.S. 154SyllabusAs a nonprofit corporation that owns and operates a private social club, petitioner's income derived from membership fees and other receipts from members is exempt from income tax. However, all other income is nonexempt "unrelated business taxable income," defined in § 512(a)(3)(A) of the Internal Revenue Code as"the gross income (excluding any exempt function income), less the deductions allowed by this chapter which are directly connected with the production of the gross income (excluding exempt function income)."Petitioner has nonexempt income from sales of food and drink to nonmembers, and from return on its investments. During its 1980 and 1981 tax years, petitioner offset net losses on nonmember sales against the earnings from its investments, and reported no unrelated business taxable income. In computing its losses, petitioner identified two categories of expenses incurred in nonmember sales: (1) variable (direct) expenses, such as the cost of food, which, in each year in question, were exceeded by gross income from nonmember sales; and (2) fixed (indirect) overhead expenses, which would have been incurred whether or not sales had been made to nonmembers. It determined what portions of fixed expenses were attributable to nonmember sales by employing an allocation formula known as the "gross-to-gross method," based on the ratio that nonmember sales bore to total sales. The total of these fixed expenses and variable costs exceeded petitioner's gross income from nonmember sales. On audit, the Commissioner determined that petitioner could deduct expenses associated with nonmember sales up to the amount of receipts from the sales themselves, but could not use losses from those activities to offset its investment income because it had failed to show that its nonmember sales were undertaken with an intent to profit. Petitioner sought redetermination, and the Tax Court ruled in petitioner's favor, concluding that petitioner had adequately demonstrated that it had a profit motive, since its gross receipts from nonmember sales consistently exceeded the variable costs associated with those activities. The Court of Appeals reversed, holding that the Tax Court had applied an incorrect legal standard in determining that petitioner had demonstrated an intent to profit, because profit in this context meant the production of gains in excess of all direct and indirect Page 497 U. S. 155 costs. The court remanded the case for a determination whether petitioner engaged in its nonmember activities with the required intent to profit from those activities.Held: Petitioner may use losses incurred in sales to nonmembers to offset investment income only if those sales were motivated by an intent to profit, which is to be determined by using the same allocation method as petitioner used to compute its actual profit or loss. Pp. 497 U. S. 163-166.(a) The statutory scheme for the taxation of social clubs was intended to achieve tax neutrality by ensuring that members are not subject to tax disadvantages as a consequence of their decision to pool their resources for the purchase of social or recreational services, but was not intended to provide clubs with a tax advantage. Pp. 497 U. S. 160-163.(b) By limiting deductions from unrelated business income to those expenses allowable as deductions under "this chapter," § 512(a)(3)(A) limits such deductions to expenses allowable under Chapter 1 of the Code. Since only § 162 of Chapter 1 serves as a basis for the deductions claimed here, and since a taxpayer's activities fall within § 162's scope only if an intent, to profit is shown, see Commissioner v. Groetzinger, 480 U. S. 23, 480 U. S. 35, petitioner's nonmember sales must be motivated by an intent to profit. Dispensing with the profit-motive requirement in this case would run counter to the principle of tax neutrality underlying the statutory scheme. Pp. 497 U. S. 163-166.(c) The Commissioner correctly concluded that the same allocation method must be used in determining petitioner's intent to profit as in computing its actual profit or loss. It is an inherent contradiction to argue that the same fixed expenses that are attributable to nonmember sales in calculating actual losses can also be attributed to membership activities in determining whether petitioner acted with the requisite intent to profit. Having chosen to calculate its actual losses on the basis of the gross-to-gross formula, petitioner is foreclosed from attempting to demonstrate its intent to profit based on some other allocation method. Pp. 497 U. S. 166-170.(d) Petitioner has failed to show that it intended to earn gross income from nonmember sales in excess of its total costs where fixed expenses are allocated using the gross-to-gross method. P. 497 U. S. 171.876 F.2d 897, (CA9 1989) affirmed.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined, and in which O'CONNOR, SCALIA, and KENNEDY, JJ., joined except as to Parts III-B and IV. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which O'CONNOR and SCALIA, JJ., joined, post, p. 497 U. S. 171. Page 497 U. S. 156 |
301 | 1960_84 | MR. JUSTICE HARLAN delivered the opinion of the Court.We are called upon to decide whether the State of New York may, consistently with the Fourteenth Amendment, disbar an attorney who, relying on his state privilege against self-incrimination, has refused to answer material questions of a duly authorized investigating authority relating to alleged professional misconduct. [Footnote 1] Page 366 U. S. 119The issue arises in the context of the so-called Brooklyn "ambulance chasing" Judicial Inquiry which this Court had before it in Anonymous Nos. 6 and 7 v. Baker, 360 U. S. 287. The origins, authority, and nature of the Inquiry have already been sufficiently described in our opinion in that case. There need only be added here that the purpose of the Inquiry, as reflected in the establishing order of the Appellate Division of the Supreme Court of the State of New York, Second Department, was twofold:"to expose all the evil practices [involved in the improper solicitation and handling of contingent retainers in personal injury cases] with a view to enabling this court to adopt appropriate measures to eliminate them and to discipline those attorneys found to have engaged in them."In re Cohen, 9 A.D.2d 436, 437, 195 N.Y.S.2d 990, 993.For some years, the Second Department has had a court rule"which requires that an attorney who makes contingent fee agreements for his services in personal injury, wrongful death, property damage, and certain other kinds of cases, must file such agreements with the [Appellate Division], and, if he enters into five or more such agreements in any year, must give to the court in writing certain particulars as to how he came to be retained"(called "Statements of Retainer"). 7 N.Y.2d 488, 493, 199 N.Y.S.2d 658, 660, 166 N.E.2d 672, 674, see Rule 3 of the Special Rules Regulating the Conduct of Attorneys and Counselors at Law in the Second Judicial Department, Clevenger's Practice Manual, p. 21-19 (1959). Principally as a result of the large number of Statements of Retainer filed by him during recent years, petitioner was called to testify and produce records before the Justice in charge of the Inquiry. [Footnote 2] Relying on his concededly Page 366 U. S. 120 available state privilege against self-incrimination, petitioner refused to produce the records called for, and to answer some sixty other questions. The subject matter of such questions was summarized by the New York Court of Appeals in its opinion in this case (7 N.Y.2d 488, 494, 199 N.Y.S.2d 658, 661, 166 N.E.2d 672, 674-675) as follows:". . . Those unanswered questions related to the identity of his law office partners, associates and employees, to his possession of the records of the cases described in his statements of retainer, to any destruction of such records, to his bank accounts, to his paying police officers or others for referring claimants to him, to his paying insurance company employees for referring cases to him, and to his promising to pay to any 'lay person' 10% of recoveries or settlements. He was asked -- and refused to answer -- as to whether he had made or agreed to make such payments to any of several named persons, as to whether he had hired or paid nonlawyers to arrange settlements of his cases with insurance companies, and as to whether his partner or associate Rothenberg had been indicted for and had pleaded guilty to violations of sections 270-a and 270-d of the Penal Law, which forbid the solicitation of legal business or the employment by lawyers of such solicitors. . . ."After petitioner had refused to answer these questions, counsel for the Inquiry warned him that "serious consequences," in the form of an exercise of the Appellate Division's disciplinary power over attorneys practicing before Page 366 U. S. 121 it, [Footnote 3] might flow from his refusal to respond, even though that refusal was based on a claim of privilege. As the basis for his warning, counsel referred to various provisions of the Canons of Professional Ethics [Footnote 4] and of the New York Penal Law. [Footnote 5] Petitioner was then given a further opportunity to respond to the unanswered questions, but he declined, preferring to rely upon his claim of privilege.Thereafter the Justice in charge of the Inquiry recommended to the Appellate Division that petitioner be disciplined. The Appellate Division ordered respondent Hurley to file a petition for disciplinary action. The ensuing petition sought petitioner's disbarment, alleging as grounds therefor:"The refusal of . . . Albert Martin Cohen, to produce the records [called for by the Inquiry], and his refusal to answer the questions [summarized above], are in disregard and in violation of the inherent duty and obligation of respondent as a member of the legal profession in that, among other things, such refusals are contrary to the standards of candor and frankness that are required and expected of a lawyer Page 366 U. S. 122 to the Court; such refusals are in defiance of and flant [sic] the authority of the Court to inquire into and elicit information within respondent's knowledge relating to this conduct and practices as a lawyer; by his refusal to answer the aforesaid questions, the respondent hindered and impeded the Judicial Inquiry that was ordered by this Court; by his refusals, respondent withheld vital information bearing upon his conduct, character, fitness, integrity, trust and reliability as a member of the legal profession. . . ."The Appellate Division ordered petitioner disbarred, saying (9 A.D.2d at 448-449, 195 N.Y.S.2d at 1003):"To avoid any possible doubt as to our position, we state again that the basis for any disciplinary action by this court is not the fact that respondent has invoked his constitutional privilege against self-incrimination, but rather the fact that he has deliberately refused to cooperate with the court in its efforts to expose unethical practices and in its efforts to determine incidentally whether he had committed any acts of professional misconduct which destroyed the character and fitness required of him as a condition to his retention of the privilege of remaining a member of the Bar."The New York Court of Appeals affirmed, Judge Fuld dissenting. [Footnote 6] 7 N.Y.2d 488, 199 N.Y.S.2d 658, 166 N.E.2d 672. We granted certiorari because the case presented still another variant of the issues arising in the Konigsberg and Anastaplo cases, ante, pp. 366 U. S. 36, 366 U. S. 82.Starting from the undeniably correct premise that a State may not arbitrarily refuse a person permission to Page 366 U. S. 123 practice law, Konigsberg v. State Bar of California, 353 U. S. 252; Schware v. Board of Bar Examiners, 353 U. S. 232, petitioner's claim that New York's disbarment of him was capricious rests essentially on two propositions: (1) that the Fourteenth Amendment forbade the State from making his refusal to answer the Inquiry's questions a per se ground for disbarment; (2) that, in any event, such a ground is not permissible when refusal to answer rests on a bona fide claim of a privilege against self-incrimination.IThe first contention must be rejected largely in light of our today's opinions in the Konigsberg and Anastaplo cases. The fact that such refusal was here made a ground for disbarment, rather than for denial of admission to the bar, as in Konigsberg and Anastaplo, is not of constitutional moment. And there is no claim here either that the unanswered questions were not material or that petitioner was not duly warned of the consequences of his refusal to answer. By the same token, those cases also dispose of petitioner's basically similar contention that the State could proceed against him only by way of independent evidence of wrongdoing on his part.We do not think it can be seriously contended that New York's judicial inquiry was so devoid of rational justification that the mere act of compelling even unprivileged testimony was a deprivation of petitioner's liberty without due process. History and policy combine to establish the presence of a substantial state interest in conducting an investigation of this kind. That interest is nothing less than the exertion of disciplinary powers which English and American courts (the former primarily through the Inns of Court) have for centuries possessed over members of the bar, incident to their broader responsibility for Page 366 U. S. 124 keeping the administration of justice and the standards of professional conduct unsullied. Not only is the practice of such judicial investigations long established, but the subject matter of the present investigation does not lack a rational basis. It is no less true than trite that lawyers must operate in a three-fold capacity, as self-employed businessmen as it were, as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes. It is certainly not beyond the realm of permissible state concerns to conclude that too much attention to the business of getting clients may be incompatible with a sufficient devotion to duties which a lawyer owes to the court, or that the "payment of awards to persons bringing in legal business" is inconsistent with the personally disinterested position a lawyer should maintain.Finally, it cannot by any stretch be considered that New York acted arbitrarily or irrationally in applying the disciplinary sanction of disbarment to the petitioner. What Mr. Justice Cardozo (then Chief Judge of the New York Court of Appeals) said in the Karlin case is enough to put an end to that contention:"If a barrister was suspected of misconduct, the benchers of his inn might inquire of his behavior. We can hardly doubt that refusal to answer would have been followed by expulsion. There was thus little occasion for controversies as to discipline to be brought before the judges, unless the benchers failed in the performance of their duties. In case they did fail, a supervisory power was ever in reserve. The inns . . . were subject . . . to visitation by the judges. . . . Short shrift would there have been for the barrister who refused to make answer as to his professional behavior in defiance of the visitors."248 N.Y. 465 at 472-473, 162 N.E. 487 at 490. Page 366 U. S. 125 If more than long lived practice is thought necessary to justify such a sanction, it is to be found in the fact that the denial of continued access to a position that can be misused is permissible to assure that the position may not be held without observance of the obligations lawfully imposed upon it. Revocation of a license for failure to fulfill similar obligations of a licensee is the very sanction which the Federal Government has adopted in a number of situations. See 12 U.S.C. § 481, 47 U.S.C. §§ 308(b), 312(a)(4).IIA different constitutional conclusion does not result from the fact that petitioner's refusal was based on a good faith assertion of his state privilege against self-incrimination. Because, from a federal standpoint, there can be no doubt that a State has great leeway in defining the reach of its own privilege against self-incrimination, we regard the scope of federal review here as being limited to the question whether arbitrary of discriminatory state action can be found in the consequences New York has attached to the exercise of the privilege in this instance.Basic to consideration of this aspect of petitioner's case is the fact that the State's disbarment order was predicated not upon any unfavorable inference which it drew from petitioner's assertion of the privilege, cf. Slochower v. Board of Higher Education, 350 U. S. 551, 350 U. S. 557-558; Grunewald v. United States, 353 U. S. 391, 353 U. S. 421, nor upon any purpose to penalize him for its exercise, but solely upon his refusal to discharge obligations which, as a lawyer, he owed to the court. The Court of Appeals stated:"Of course, [petitioner] had the right to assert the privilege, and to withhold the criminating answers. That right was his, as it would be the right of any citizen, and it was not denied to him. He could not Page 366 U. S. 126 be forced to waive his immunity. . . . But the question still remained as to whether he had broken the 'condition' on which depended the 'privilege' of membership in the Bar. . . . 'Whenever the condition is broken, the privilege is lost' (citing Matter of Rouss, 221 N.Y. 81, 84-85, 116 N.E. 782 at 782, Cardozo, J.). Appellant, as a citizen, could not be denied any of the common rights of citizens. But he stood before the inquiry and before the Appellate Division in another quite different capacity, also. As a lawyer, he was 'an officer of the court, and, like the court itself, an instrument . . . of justice' (citing People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470-471, 162 N.E. 487, 489, Cardozo, J.), with the inevitable consequences that the court which was charged with control and discipline of its officers had its own right to demand his full, honest and loyal cooperation in its investigations, and to strike his name from the rolls if he refused to cooperate. Such 'cooperation' is a 'phrase without reality' as Chief Judge Cardozo wrote in People ex rel. Karlin v. Culkin, supra, 248 N.Y. at 471, 162 N.E. at 489, if a lawyer after refusing to answer pertinent questions about his professional conduct can retain his status and privileges as an officer of the court."7 N.Y.2d at 495, 199 N.Y.S.2d at 662, 166 N.E.2d at 675.We do not think that it can be seriously contended that the unavailability of the state privilege in judicial inquiries of this type amounts to a distinction from criminal prosecutions so irrational as to suggest either a denial of due process or a purposeful discrimination of the kind which violates the Equal Protection Clause of the Fourteenth Amendment. A State may rationally conclude that the consequence of disbarment is less drastic than that of a prison term for contempt, albeit arguments to the contrary can be made as well. It may also rationally Page 366 U. S. 127 conclude that procedures resulting in greater preventive certainty are warranted when what is involved is the right to continue to occupy a position affording special opportunities for deleterious conduct -- opportunities, indeed, created by the State's original certification of the petitioner's merit. In this regard, all that New York has, in effect, held is that petitioner, by resort to a privilege against self-incrimination, can no more claim a right not to be disbarred for his refusal to answer with respect to matters within the competence of the Court's supervisory powers over members of the bar, than could a trustee claim a right not to be removed from office for failure to render accounts which might incriminate him. Finally, where illegal or shady practices on the part of some lawyers are suspected, New York could rationally conclude that the profession itself need not be subjected to the disrespect which would result from the publicity, delay, and possible ineffectiveness in their exposure and eradication that might follow could miscreants only be dealt with through ordinary investigatory and prosecutorial processes. " If the house is to be cleaned, it is for those who occupy and govern it, rather than for strangers, to do the noisome work."People ex rel. Karlin v. Culkin, 248 N.Y. 465, 480, 162 N.E. 487, 493 (Cardozo, J.).These bases for affording a procedure in such judicial inquiries different from that in criminal prosecutions are more than enough to make wholly untenable a contention that there has here been a denial either of due process or of equal protection.Although what has already been said disposes of this case, we take note, in conclusion, of two further considerations. First, it is suggested that the Fourteenth Amendment gave petitioner a federal constitutional right not to be required to incriminate himself in the state proceedings (although, apart from his claim of fundamental Page 366 U. S. 128 unfairness, the petitioner himself does not so contend, note 1 supra). That proposition, however, was explicitly rejected by this Court, upon the fullest consideration, more than fifty years ago, Twining v. New Jersey, 211 U. S. 78, [Footnote 7] and such has been the position of the Court ever since. [Footnote 8] See Snyder v. Massachusetts, 291 Page 366 U. S. 129 U.S. 97; [Footnote 9] Brown v. Mississippi, 297 U. S. 278, 297 U. S. 285; Palko v. Connecticut, 302 U. S. 319, 302 U. S. 323-324; Adamson v. California, 332 U. S. 46; [Footnote 10] Knapp v. Schweitzer, 357 U. S. 371, 357 U. S. 374. This is not to say, of course, that State have free rein either in the choice of means of forcing incriminatory testimony or in the drawing of inferences from a refusal to testify on grounds of possible self-incrimination, no matter how objectionable or irrational. But these decisions do establish, at the very least, that, to make out a violation of the Fourteenth Amendment, something substantially more must be shown than that the state procedures involved have a tendency to discourage the withholding of self-incriminatory testimony.It is, however, suggested that such additional factors are to be found in New York's assertion of a power to grant a state privilege against self-incrimination without including within its sweep protection from disbarment of a lawyer who asserts this privilege during a judicial inquiry into his professional conduct. It is said that this gives rise to a pernicious doctrine whereby lawyers"may be separated into a special group upon which special burdens can be imposed even though such burdens are not and cannot be placed upon other groups."This argument wholly misconceives the issue and what the Court has held respecting it. The issue is not, of course, whether lawyers are entitled to due process of law in matters of this kind, but, rather, what process is constitutionally due them in such circumstances. We do Page 366 U. S. 130 not hold that lawyers, because of their special status in society, can therefore be deprived of constitutional rights assured to others, but only, as in all cases of this kind, that what procedures are fair, what state process is constitutionally due, what distinctions are consistent with the right to equal protection, all depend upon the particular situation presented, and that history is surely relevant to these inquiries. [Footnote 11] State banks may be subjected to periodic examinations that would violate the rights of some other kinds of business against unreasonable search and seizure. Compare 12 U.S.C. § 481, with Boyd v. United States, 116 U. S. 616. A state contractor can be deprived of even the rudiments of a hearing on the issue of whether the state executive department is contracting in accordance with applicable state law. Cf. Perkins v. Lukens Steel Co., 310 U. S. 113. The "right" to judicial review of agency determinations can be taken away from railroad employees in one situation, but Page 366 U. S. 131 guaranteed to professional employees in other situations. Compare Switchmen's Union of North America v. National Mediation Board, 320 U. S. 297, with Leedom v. Kyne, 358 U. S. 184. A state employee need no longer be entrusted with government property if he refuses to explain what has become of property with which he is charged, though his refusal may be protected against a contempt sanction by a state or federal privilege against self-incrimination. Cf. Lerner v. Casey, 357 U. S. 468.Clearly enough, factual distinctions are the determinative consideration upon the question of what process is due in each of these cases. Otherwise, making state procedures vary solely on the basis of the given occupation would indeed be nothing less than a denial of equal protection to bankers, contractors, railroad employees, and government employees. On the basis of the factual distinctions that we have mentioned above, we consider that a State can constitutionally afford a different procedure -- the present procedure -- in these judicial investigation from that in criminal prosecutions.Petitioner's disbarment is not constitutionally infirm, and the Court of Appeals' order must beAffirmed | U.S. Supreme CourtCohen v. Hurley, 366 U.S. 117 (1961)Cohen v. HurleyNo. 84Argued December 14 15, 1960Decided April 24, 1961366 U.S. 117SyllabusDuring a judicial inquiry in a state court into alleged professional misconduct of lawyers, petitioner, a lawyer, was called to testify and produce records before the judge in charge of the inquiry. Relying primarily on his state privilege against self-incrimination, he refused to produce the required records and to answer questions relating to his alleged professional misconduct, and he persisted in such refusal after being warned that it might result in "serious consequences" in the form of an exercise of the court's disciplinary power over attorneys practicing before it. Solely on the ground of such refusal to cooperate in the court's efforts to expose unethical practices, and without any independent proof of wrongdoing on his part, petitioner was disbarred by the state court.Held: disciplinary action did not violate petitioner's rights under the Fourteenth Amendment. Pp. 366 U. S. 118-131.(a) Disbarment of petitioner solely because of his refusal to cooperate in the court's efforts to expose unethical conduct, and without any independent evidence of wrongdoing on his part, was not arbitrary or irrational, and it did not deprive him of liberty without due process of law contrary to the Fourteenth Amendment. Konigsberg v. State Bar, ante, p. 366 U. S. 36; In re Anastaplo, ante, p 366 U. S. 82. Pp. 366 U. S. 123-125.(b) A different conclusion is not required by the fact that petitioner's refusal was based on a bona fide assertion of his state privilege against self-incrimination. Pp. 366 U. S. 125-127.(c) The Fourteenth Amendment did not give petitioner a federal constitutional right not to be required to incriminate himself in the state proceedings. Pp. 366 U. S. 127-129.(d) The State's action does not unconstitutionally discriminate against lawyers as a class. Pp. 366 U.S. 129-131.7 N.Y.2d 488, 166 N.E.2d 672, affirmed. Page 366 U. S. 118 |
302 | 1958_1 | MR. JUSTICE FRANKFURTER delivered the opinion of the Court.Petitioner was tried in the Federal District Court for the Northern District of Illinois on December 18, 1953, for robbery of a federally insured savings and loan association, Page 359 U. S. 122 the General Savings and Loan Association of Cicero, Illinois, in violation of 18 U.S.C. § 2113. The case was tried to a jury and resulted in an acquittal. On January 8, 1954, an Illinois grand jury indicted Bartkus. The facts recited in the Illinois indictment were substantially identical to those contained in the prior federal indictment. The Illinois indictment charged that these facts constituted a violation of Illinois Revised Statutes, 1951, c. 38, § 501, a robbery statute. Bartkus was tried and convicted in the Criminal Court of Cook County, and was sentenced to life imprisonment under the Illinois Habitual Criminal Statute. Ill.Rev.Stat., 1951, c. 38, § 602.The Illinois trial court considered and rejected petitioner's plea of autrefois acquit. That ruling and other alleged errors were challenged before the Illinois Supreme Court, which affirmed the conviction. 7 Ill. 2d 138, 130 N.E.2d 187. We granted certiorari because the petition raised a substantial question concerning the application of the Fourteenth Amendment. 352 U.S. 907, 958. On January 6, 1958, the judgment below was affirmed by an equally divided Court. 355 U. S. 281. On May 26, 1958, the Court granted a petition for rehearing, vacated the judgment entered January 6, 1958, and restored the case to the calendar for reargument. 356 U.S. 969.The state and federal prosecutions were separately conducted. It is true that the agent of the Federal Bureau of Investigation who had conducted the investigation on behalf of the Federal Government turned over to the Illinois prosecuting officials all the evidence he had gathered against the petitioner. Concededly, some of that evidence had been gathered after acquittal in the federal court. The only other connection between the two trials is to be found in a suggestion that the federal sentencing of the accomplices who testified against petitioner in both Page 359 U. S. 123 trials was purposely continued by the federal court until after they testified in the state trial. The record establishes that the prosecution was undertaken by state prosecuting officials within their discretionary responsibility and on the basis of evidence that conduct contrary to the penal code of Illinois had occurred within their jurisdiction. It establishes also that federal officials acted in cooperation with state authorities, as is the conventional practice between the two sets of prosecutors throughout the country. [Footnote 1] It does not support the claim that the State of Illinois, in bringing its prosecution, was merely a tool of the federal authorities, who thereby avoided the prohibition of the Fifth Amendment against a retrial of Page 359 U. S. 124 a federal prosecution after an acquittal. It does not sustain a conclusion that the state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution.Since the new prosecution was by Illinois, and not by the Federal Government, the claim of unconstitutionality must rest upon the Due Process Clause of the Fourteenth Amendment. Prior cases in this Court relating to successive state and federal prosecutions have been concerned with the Fifth Amendment, and the scope of its proscription of second prosecutions by the Federal Government, not with the Fourteenth Amendment's effect on state action. We are now called upon to draw on the considerations which have guided the Court in applying the limitations of the Fourteenth Amendment on state powers. We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. [Footnote 2] The relevant historical materials have been canvassed by this Court and by legal scholars. [Footnote 3] These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a shorthand incorporation of the first eight amendments, making them applicable as explicit restrictions upon the States.Evidencing the interpretation by both Congress and the States of the Fourteenth Amendment is a comparison of the constitutions of the ratifying States with the Federal Page 359 U. S. 125 Constitution. Having regard only to the grand jury guarantee of the Fifth Amendment, the criminal jury guarantee of the Sixth Amendment, and the civil jury guarantee of the Seventh Amendment, it is apparent that, if the first eight amendments were being applied verbatim to the States, ten of the thirty ratifying States would have impliedly been imposing upon themselves constitutional requirements on vital issues of state policies contrary to those present in their own constitutions. [Footnote 4] Or, to approach the matter in a different way, they would be covertly altering provisions of their own constitutions in disregard of the amendment procedures required by those constitutions. Five other States would have been undertaking procedures not in conflict with, but not required by, their constitutions. Thus, only one-half, or fifteen, of the ratifying States had constitutions in explicit accord with these provisions of the Fifth, Sixth, and Seventh Amendments. Of these fifteen, four made alterations in their constitutions by 1875 which brought them into important conflict with one or more of these provisions of the Federal Constitution. One of the States whose constitution had not included any provision on one of the three procedures under investigation adopted a provision in 1890 which was inconsistent with the Federal Constitution. And so, by 1890, only eleven of the thirty ratifying States were in explicit accord with these provisions of the first eight amendments to the Federal Constitution. Four were silent as to one or more of the provisions, and fifteen were in open conflict with these same provisions. [Footnote 5] Page 359 U. S. 126Similarly imposing evidence of the understanding of the Due Process Clause is supplied by the history of the admission of the twelve States entering the Union after the ratification of the Fourteenth Amendment. In the case of each, Congress required that the State's constitution be "not repugnant" to the Constitution of the United States. [Footnote 6] Not one of the constitutions of the twelve States contains all three of the procedures relating to grand jury, criminal jury, and civil jury. In fact, all twelve have provisions obviously different from the requirements of the Fifth, Sixth, or Seventh Amendments. And yet, in the case of each admission, either the President of the United States or Congress or both have found that the constitution was in conformity with the Enabling Act and the Constitution of the United States. [Footnote 7] Nor is there warrant to believe that the States, in adopting constitutions with the specific purpose of complying with the requisites of admission, were, in fact, evading the demands of the Constitution of the United States.Surely this compels the conclusion that Congress and the States have always believed that the Due Process Clause brought into play a basis of restrictions upon the States other than the undisclosed incorporation of the original eight amendments. In Hurtado v. California, 110 U. S. 516, this Court considered due process in its historical setting, reviewed its development as a concept in Anglo-American law from the time of the Magna Carta until the time of the adoption of the Fourteenth Page 359 U. S. 127 Amendment and concluded that it was intended to be a flexible concept, responsive to thought and experience -- experience which is reflected in a solid body of judicial opinion, all manifesting deep convictions to be unfolded by a process of "inclusion and exclusion." Davidson v. New Orleans, 96 U. S. 97, 96 U. S. 104. Time and again, this Court has attempted by general phrases not to define but to indicate the purport of due process, and to adumbrate the continuing adjudicatory process in its application. The statement by Mr. Justice Cardozo in Palko v. Connecticut, 302 U. S. 319, has especially commended itself and been frequently cited in later opinions. [Footnote 8] Referring to specific situations, he wrote:"In these and other situations, immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states."302 U.S. at 302 U. S. 324-325. About the meaning of due process, in broad perspective unrelated to the first eight amendments, he suggested that it prohibited to the States only those practices "repugnant to the conscience of mankind." 302 U.S. at 302 U. S. 323. In applying these phrases in Palko, the Court ruled that, while at some point the cruelty of harassment by multiple prosecutions by a State would offend due process, the specific limitation imposed on the Federal Government by the Double Jeopardy Clause of the Fifth Amendment did not bind the States.Decisions of this Court concerning the application of the Due Process Clause reveal the necessary process of Page 359 U. S. 128 balancing relevant and conflicting factors in the judicial application of that Clause. In Chambers v. Florida, 309 U. S. 227, we held that a state conviction of murder was void because it was based upon a confession elicited by applying third-degree methods to the defendant. But we have also held that a second execution necessitated by a mechanical failure in the first attempt was not in violation of due process. Louisiana ex rel. Francis v. Resweber, 329 U. S. 459. Decisions under the Due Process Clause require close and perceptive inquiry into fundamental principles of our society. The Anglo-American system of law is based not upon transcendental revelation, but upon the conscience of society ascertained as best it may be by a tribunal disciplined for the task and environed by the best safeguards for disinterestedness and detachment.Constitutional challenge to successive state and federal prosecutions based upon the same transaction or conduct is not a new question before the Court, though it has now been presented with conspicuous ability. [Footnote 9] The Fifth Page 359 U. S. 129 Amendment's proscription of double jeopardy has been invoked and rejected in over twenty cases of real or hypothetical successive state and federal prosecution cases before this Court. While United States v. Lanza, 260 U. S. 377, was the first case in which we squarely held valid a federal prosecution arising out of the same facts which had been the basis of a state conviction, the validity of such a prosecution by the Federal Government has not been questioned by this Court since the opinion in Fox v. Ohio, 5 How. 410, more than one hundred years ago.In Fox v. Ohio, argument was made to the Supreme Court that an Ohio conviction for uttering counterfeit money was invalid. This assertion of invalidity was based in large part upon the argument that, since Congress had imposed federal sanctions for the counterfeiting of money, a failure to find that the Supremacy Clause precluded the States from punishing related conduct would expose an individual to double punishment. Mr. Justice Daniel, writing for the Court (with Mr. Justice McLean dissenting), recognized as true that there was a possibility of double punishment, but denied that from this flowed a finding of preemption, concluding instead that both the Federal and State Governments retained the power to impose criminal sanctions, the United States because of its interest in protecting the purity of its currency, the States because of their interest in protecting their citizens against fraud.In some eight state cases decided prior to Fox, the courts of seven States had discussed the validity of successive state and federal prosecutions. In three, Missouri, [Footnote 10] North Carolina, [Footnote 11] and Virginia, [Footnote 12] it had been said that there would be no plea in bar to prevent the second prosecution. Page 359 U. S. 130 Discussions in two cases in South Carolina were in conflict -- the earlier opinion [Footnote 13] expressing belief that there would be a bar, the later, [Footnote 14] without acknowledging disagreement with the first, denying the availability of a plea in bar. In three other States, Vermont, [Footnote 15] Massachusetts, [Footnote 16] and Michigan, [Footnote 17] courts had stated that a prosecution by one government would bar prosecution by another government of a crime based on the same conduct. The persuasiveness of the Massachusetts and Michigan decisions is somewhat impaired by the precedent upon which they relied in their reasoning. In the Supreme Court case cited in the Massachusetts and Michigan cases, Houston v. Moore, 5 Wheat. 1, there is some language to the effect that there would be a bar to a second prosecution by a different government. 5 Wheat. at 18 U. S. 31. But that language by Mr. Justice Washington reflected his belief that the state statute imposed state sanctions for violation of a federal criminal law. 5 Wheat. at 18 U. S. 28. As he viewed the matter, the two trials would not be of similar crimes arising out of the same conduct; they would be of the same crime. Mr. Justice Johnson agreed that, if the state courts had become empowered to try the defendant for the federal offense, then such a state trial would bar a federal prosecution. 5 Wheat. at 18 U. S. 35. Thus, Hoston v. Moore can be cited only for the presence of a bar in a case in which the second trial is for a violation of the very statute whose violation by the same conduct has already been tried in the courts of another government empowered to try that question. [Footnote 18] Page 359 U. S. 131The significance of this historical background of decisions prior to Fox is that it was, taking a position most favorable to advocates of the bars of autrefois acquit and autrefois convict in cases like that before this Court, totally inconclusive. Conflicting opinions concerning the applicability of the plea in bar may manifest conflict in conscience. They certainly do not manifest agreement that to permit successive state and federal prosecutions for different crimes arising from the same acts would be repugnant to those standards of outlawry which offend the conception of due process outlined in Palko. (It is worth noting that Palko sustained a first degree murder conviction returned in a second trial after an appeal by the State from an acquittal of first degree murder.) The early state decisions had clarified the issue by stating the opposing arguments. The process of this Court's response to the Fifth Amendment challenge was begun in Fox v. Ohio, continued in United States v. Marigold, 9 How. 560, and was completed in Moore v. Illinois, 14 How. 13. Mr. Justice Grier, writing for the Court in Moore v. Illinois, gave definitive statement to the rule which had been evolving:"An offence, in its legal significantion, means the transgression of a law."14 How. at 55 U. S. 19."Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both."14 How. at 55 U. S. 20."That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot Page 359 U. S. 132 be truly averred that the offender has been twice punished for the same offence; but only that, by one act, he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other."Ibid.In a dozen cases decided by this Court between Moore v. Illinois and United States v. Lanza, this Court had occasion to reaffirm the principle first enunciated in Fox v. Ohio. [Footnote 19] Since Lanza, the Court has five times repeated the rule that successive state and federal prosecutions are not in violation of the Fifth Amendment. [Footnote 20] Indeed, Mr. Justice Holmes once wrote of this rule that it "is too plain to need more than statement." [Footnote 21] One of the post-Lanza cases, Jerome v. United States, 318 U. S. 101, involved the same federal statute under which Bartkus was indicted, and, in Jerome, this Court recognized that successive state and federal prosecutions were thereby made possible because all States had general robbery statutes. Nonetheless, a unanimous Court, as recently as 1943, accepted as unquestioned constitutional law that such successive prosecutions would not violate the proscription of double Page 359 U. S. 133 jeopardy included in the Fifth Amendment. 318 U.S. at 318 U. S. 105. [Footnote 22]The lower federal courts have, of course, been in accord with this Court. [Footnote 23] Although some can be cited only in Page 359 U. S. 134 that they follow the decisions of this Court, others manifest reflection upon the issues involved and express reasoned approval of the two sovereignty principle. In United States v. Barnhart, 22 F. 285, the Oregon Circuit Court was presented with a case just the obverse of the present one: the prior trial and acquittal was by a state court; the subsequent trial was by a federal court. The Circuit Court rejected defendant's plea of autrefois acquit, saying that the hardship of the second trial might operate to persuade against the bringing of a subsequent prosecution, but could not bar it.The experience of state courts in dealing with successive prosecutions by different governments is obviously also relevant in considering whether or not the Illinois prosecution of Bartkus violated due process of law. Of the twenty-eight States which have considered the validity of successive state and federal prosecutions as against a challenge of violation of either a state constitutional double jeopardy provision or a common law evidentiary rule of autrefois acquit and autrefois convict, twenty-seven have refused to rule that the second prosecution Page 359 U. S. 135 was or would be barred. [Footnote 24] These States were not bound to follow this Court and its interpretation of the Fifth Amendment. The rules, constitutional, statutory, or common law which bound them, drew upon the same Page 359 U. S. 136 experience as did the Fifth Amendment, but were and are of separate and independent authority.Not all of the state cases manifest careful reasoning, for, in some of them, the language concerning double jeopardy is but offhand dictum. But in an array of state cases there may be found full consideration of the arguments supporting and denying a bar to a second prosecution. These courts interpreted their rules as not proscribing a second prosecution where the first was by a different government and for violation of a different statute.With this body of precedent as irrefutable evidence that state and federal courts have for years refused to bar a second trial even though there had been a prior trial by another government for a similar offense, it would be disregard of a long, unbroken, unquestioned course of impressive adjudication for the Court now to rule that due process compels such a bar. A practical justification for rejecting such a reading of due process also commends Page 359 U. S. 137 itself in aid of this interpretation of the Fourteenth Amendment. In Screws v. Uted States, 325 U. S. 91, defendants were tried and convicted in a federal court under federal statutes with maximum sentences of a year and two years, respectively. But the state crime there involved was a capital offense. Were the federal prosecution of a comparatively minor offense to prevent state prosecution of so grave an infraction of state law, the result would be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines. It would be in derogation of our federal system to displace the reserved power of States over state offenses by reason of prosecution of minor federal offenses by federal authorities beyond the control of the States. [Footnote 25]Some recent suggestions that the Constitution was in reality a deft device for establishing a centralized government are not only without factual justification, but fly in the face of history. It has more accurately been shown that the men who wrote the Constitution, as well as the citizens of the member States of the Confederation, were fearful of the power of centralized government, and sought to limit its power. Mr. Justice Brandeis has written that separation of powers was adopted in the Constitution "not to promote efficiency, but to preclude the exercise of arbitrary power." [Footnote 26] Time has not lessened the concern of the Founders in devising a federal system which would likewise be a safeguard against arbitrary government. Page 359 U. S. 138 The greatest self-restraint is necessary when that federal system yields results with which a court is in little sympathy.The entire history of litigation and contention over the question of the imposition of a bar to a second prosecution by a government other than the one first prosecuting is a manifestation of the evolutionary unfolding of law. Today, a number of States have statutes which bar a second prosecution if the defendant has been once tried by another government for a similar offense. [Footnote 27] A study of the cases under the New York statute, [Footnote 28] which is typical of these laws, demonstrates that the task of determining when the federal and state statutes are so much alike that a prosecution under the former bars a prosecution under the latter is a difficult one. [Footnote 29] The proper solution of that problem frequently depends upon a judgment of the gravamen of the state statute. It depends also upon an understanding of the scope of the bar that has been historically granted in the State to prevent successive state prosecutions. Both these problems are ones with which the States are obviously more competent to deal than is this Court. Furthermore, the rules resulting will intimately affect the efforts of a State to develop a rational and just body of criminal law in the protection of its citizens. We ought not to utilize the Fourteenth Amendment Page 359 U. S. 139 to interfere with this development. Finally, experience such as that of New York may give aid to Congress in its consideration of adoption of similar provisions in individual federal criminal statutes or in the federal criminal code. [Footnote 30]Precedent, experience, and reason alike support the conclusion that Alfonse Bartkus has not been deprived of due process of law by the State of Illinois.Affirmed | U.S. Supreme CourtBartkus v. Illinois, 359 U.S. 121 (1959)Bartkus v. IllinoisNo. 1Argued November 19, 1957Affirmed by an equally divided Court January 6, 1958Rehearing granted, judgment vacated and case restored tocalendar for reargument May 26, 1958Reargued October 21-22, 1958Decided March 30, 1959359 U.S. 121SyllabusPetitioner was tried and acquitted in a Federal District Court for violation of 18 U.S.C. § 2113, which makes it a crime to rob a federally insured bank. On substantially the same evidence, he was later tried and convicted in an Illinois State Court for violation of an Illinois robbery statute.Held:1. The cooperation of federal law enforcement officers with Illinois officials did not violate the Double Jeopardy Clause of the Fifth Amendment. Pp. 359 U. S. 122-124.2. The Fourteenth Amendment does not impliedly extend the first eight amendments to the States. Pp. 359 U. S. 124-126.3. The Illinois prosecution for violation of its own penal law after a prior acquittal for a federal offense, on substantially the same evidence, did not violate the Due Process Clause of the Fourteenth Amendment. Pp. 359 U. S. 127-139.7 Ill. 2d 138, 130 N.E.2d 187, affirmed. |
303 | 1983_83-18 | JUSTICE POWELL announced the judgment of the Court and delivered an opinion, in which JUSTICE REHNQUIST and JUSTICE O'CONNOR joined.In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), we held that the First Amendment restricted the damages that a private individual could obtain from a publisher for a libel that involved a matter of public concern. More specifically, we held that in these circumstances the First Amendment prohibited awards of presumed and punitive damages for false and defamatory statements unless the plaintiff shows "actual malice," that is, knowledge of falsity or reckless disregard for the truth. The question presented in this case is whether this rule of Gertz applies when the false and defamatory statements do not involve matters of public concern.IPetitioner Dun & Bradstreet, a credit reporting agency, provides subscribers with financial and related information about businesses. All the information is confidential; under the terms of the subscription agreement the subscribers may not reveal it to anyone else. On July 26, 1976, petitioner sent a report to five subscribers indicating that respondent, a construction contractor, had filed a voluntary petition for bankruptcy. This report was false and grossly misrepresented respondent's assets and liabilities. That same day, while discussing the possibility of future financing with its bank, respondent's president was told that the bank had received the defamatory report. He immediately called petitioner's regional office, explained the error, and asked for a correction. In addition, he requested the names of the firms that had received the false report in order to assure them that the company was solvent. Petitioner promised to look into the matter, but refused to divulge the names of those who had received the report.After determining that its report was indeed false, petitioner issued a corrective notice on or about August 3, 1976, Page 472 U. S. 752 to the five subscribers who had received the initial report. The notice stated that one of respondent's former employees, not respondent itself, had filed for bankruptcy, and that respondent "continued in business as usual." Respondent told petitioner that it was dissatisfied with the notice, and it again asked for a list of subscribers who had seen the initial report. Again petitioner refused to divulge their names.Respondent then brought this defamation action in Vermont state court. It alleged that the false report had injured its reputation and sought both compensatory and punitive damages. The trial established that the error in petitioner's report had been caused when one of its employees, a 17-year-old high school student paid to review Vermont bankruptcy pleadings, had inadvertently attributed to respondent a bankruptcy petition filed by one of respondent's former employees. Although petitioner's representative testified that it was routine practice to check the accuracy of such reports with the businesses themselves, it did not try to verify the information about respondent before reporting it.After trial, the jury returned a verdict in favor of respondent and awarded $50,000 in compensatory or presumed damages and $300,000 in punitive damages. Petitioner moved for a new trial. It argued that, in Gertz v. Robert Welch, Inc., supra, at 418 U. S. 349, this Court had ruled broadly that"the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth,"and it argued that the judge's instructions in this case permitted the jury to award such damages on a lesser showing. The trial court indicated some doubt as to whether Gertz applied to "non-media cases," but granted a new trial "[b]ecause of . . . dissatisfaction with its charge and . . . conviction that the interests of justice require[d]" it. App. 26.The Vermont Supreme Court reversed. 143 Vt. 66, 461 A.2d 414 (1983). Although recognizing that "in certain instances, the distinction between media and nonmedia defendants Page 472 U. S. 753 may be difficult to draw," the court stated that"no such difficulty is presented with credit reporting agencies, which are in the business of selling financial information to a limited number of subscribers who have paid substantial fees for their services."Id. at 73, 461 A.2d at 417. Relying on this distinguishing characteristic of credit reporting firms, the court concluded that such firms are not "the type of media worthy of First Amendment protection as contemplated by New York Times \[Co. v. Sullivan, 376 U. S. 254 (1964),] and its progeny." Id. at 73-74, 461 A.2d at 417-418. It held that the balance between a private plaintiff's right to recover presumed and punitive damages without a showing of special fault and the First Amendment rights of "nonmedia" speakers "must be struck in favor of the private plaintiff defamed by a nonmedia defendant." Id. at 75, 461 A.2d at 418. Accordingly, the court held "that as a matter of federal constitutional law, the media protections outlined in Gertz are inapplicable to nonmedia defamation actions." Ibid.Recognizing disagreement among the lower courts about when the protections of Gertz apply, [Footnote 1] we granted certiorari. 464 U.S. 959 (1983). We now affirm, although for reasons different from those relied upon by the Vermont Supreme Court.IIAs an initial matter, respondent contends that we need not determine whether Gertz applies in this case because the instructions, taken as a whole, required the jury to find "actual Page 472 U. S. 754 malice" before awarding presumed or punitive damages. [Footnote 2] The trial court instructed the jury that, because the report was libelous per se, respondent was not required "to prove actual damages . . . since damage and loss [are] conclusively presumed." App. 17; accord, id. at 19. It also instructed the jury that it could award punitive damages only if it found "actual malice." Id. at 20. Its only other relevant instruction was that liability could not be established unless respondent showed "malice or lack of good faith on the part of the Defendant." Id. at 18. Respondent contends that these references to "malice," "lack of good faith," and "actual malice" required the jury to find knowledge of falsity or reckless disregard for the truth -- the "actual malice" of New York Times Co. v. Sullivan, 376 U. S. 254 (1964) -- before it awarded presumed or punitive damages.We reject this claim because the trial court failed to define any of these terms adequately. It did not, for example, provide the jury with any definition of the term "actual malice." In fact, the only relevant term it defined was simple "malice." [Footnote 3] And its definitions of this term included not only the New York Times formulation but also other concepts such as Page 472 U. S. 755 "bad faith" and "reckless disregard of the [statement's] possible consequences." App.19. The instructions thus permitted the jury to award presumed and punitive damages on a lesser showing than "actual malice." Consequently, the trial court's conclusion that the instructions did not satisfy Gertz was correct, and the Vermont Supreme Court's determination that Gertz was inapplicable was necessary to its decision that the trial court erred in granting the motion for a new trial. We therefore must consider whether Gertz applies to the case before us.IIIIn New York Times Co. v. Sullivan, supra, the Court for the first time held that the First Amendment limits the reach of state defamation laws. That case concerned a public official's recovery of damages for the publication of an advertisement criticizing police conduct in a civil rights demonstration. As the Court noted, the advertisement concerned "one of the major public issues of our time." Id. at 376 U. S. 271. Noting that "freedom of expression upon public questions is secured by the First Amendment," id. at 376 U. S. 269 (emphasis added), and that "debate on public issues should be uninhibited, robust, and wide-open," id. at 376 U. S. 270 (emphasis added), the Court held that a public official cannot recover damages for defamatory falsehood unless he proves that the false statement was made with "actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not," id. at 376 U. S. 280. In later cases, all involving public issues, the Court extended this same constitutional protection to libels of public figures, e.g., Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), and in one case suggested in a plurality opinion that this constitutional rule should extend to libels of any individual so long as the defamatory statements involved a "matter of public or general interest," Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 403 U. S. 44 (1971) (opinion of BRENNAN,J.). Page 472 U. S. 756In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), we held that the protections of New York Times did not extend as far as Rosenbloom suggested. Gertz concerned a libelous article appearing in a magazine called American Opinion, the monthly outlet of the John Birch Society. The article in question discussed whether the prosecution of a policeman in Chicago was part of a Communist campaign to discredit local law enforcement agencies. The plaintiff, Gertz, neither a public official nor a public figure, was a lawyer tangentially involved in the prosecution. The magazine alleged that he was the chief architect of the "frame-up" of the police officer and linked him to Communist activity. Like every other case in which this Court has found constitutional limits to state defamation laws, Gertz involved expression on a matter of undoubted public concern.In Gertz, we held that the fact that expression concerned a public issue did not by itself entitle the libel defendant to the constitutional protections of New York Times. These protections, we found, were not "justified solely by reference to the interest of the press and broadcast media in immunity from liability." 418 U.S. at 418 U. S. 343. Rather, they represented "an accommodation between [First Amendment] concern[s] and the limited state interest present in the context of libel actions brought by public persons." Ibid. In libel actions brought by private persons we found the competing interests different. Largely because private persons have not voluntarily exposed themselves to increased risk of injury from defamatory statements and because they generally lack effective opportunities for rebutting such statements, id. at 418 U. S. 345, we found that the State possessed a "strong and legitimate . . . interest in compensating private individuals for injury to reputation." Id. at 418 U. S. 348-349. Balancing this stronger state interest against the same First Amendment interest at stake in New York Times, we held that a State could not allow recovery of presumed and punitive damages absent a showing of "actual malice." Nothing in our opinion, Page 472 U. S. 757 however, indicated that this same balance would be struck regardless of the type of speech involved. [Footnote 4]IVWe have never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern. To make this determination, we must employ the approach approved in Gertz and balance the State's interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression. This state interest is identical to the one weighed in Gertz. There we found that it was "strong and legitimate." 418 U.S. at 418 U. S. 348. A State should not lightly be required to abandon it,"for, as Mr. Justice Stewart has reminded us, the individual's right to the protection of his own good name Page 472 U. S. 758 'reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. . . .' Rosenblatt v. Baer, 383 U. S. 75, 383 U. S. 92 (1966) (concurring opinion)."Id. at 418 U. S. 341.The First Amendment interest, on the other hand, is less important than the one weighed in Gertz. We have long recognized that not all speech is of equal First Amendment importance. [Footnote 5] It is speech on "matters of public concern'" Page 472 U. S. 759 that is "at the heart of the First Amendment's protection." First National Bank of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 776 (1978), citing Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101 (1940). As we stated in Connick v. Myers, 461 U. S. 138, 461 U. S. 145 (1983), this "special concern [for speech on public issues] is no mystery":"The First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U. S. 476, 354 U. S. 484 (1957); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 269 (1964). "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 74-75 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the "highest rung of the hierarchy of First Amendment values,'" and is entitled to special protection. NAACP v. Claiborne Hardware Co., 458 U. S. 886, 458 U. S. 913 (1982); Carey v. Brown, 447 U. S. 455, 447 U. S. 467(1980)." In contrast, speech on matters of purely private concern is of less First Amendment concern. Id. at 461 U. S. 146-147. As a number of state courts, including the court below, have recognized, the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent. [Footnote 6] In such a case, Page 472 U. S. 760"[t]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press. The facts of the present case are wholly without the First Amendment concerns with which the Supreme Court of the United States has been struggling."Harley-Davidson Motorsports, Inc. v. Markley, 279 Ore. 361, 366, 568 P.2d 1359, 1363 (1977). Accord, Rowe v. Metz, 195 Colo. 424, 426, 579 P.2d 83, 84 (1978); Denny v. Mertz, 106 Wis.2d 636, 661, 318 N.W.2d 141, 153, cert. denied, 459 U.S. 883 (1982).While such speech is not totally unprotected by the First Amendment, see Connick v. Myers, supra, at 461 U. S. 147, its protections are less stringent. In Gertz, we found that the state interest in awarding presumed and punitive damages was not "substantial" in view of their effect on speech at the core of First Amendment concern. 418 U.S. at 418 U. S. 349. This interest, however, is "substantial" relative to the incidental effect these remedies may have on speech of significantly less constitutional interest. The rationale of the common law rules has been the experience and judgment of history that"proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact."W. Prosser, Law of Torts § 112, p. 765 (4th ed.1971); accord, Rowe v. Metz, supra, at 425-426, 579 P.2d at 84; Note, Developments in the Law -- Defamation, 69 Harv.L.Rev. 875, 891-892 (1956). As a result, courts for centuries have allowed juries to presume that some damage occurred from many defamatory utterances Page 472 U. S. 761 and publications. Restatement of Torts § 568, Comment b, p. 162 (1938) (noting that Hale announced that damages were to be presumed for libel as early as 1670). This rule furthers the state interest in providing remedies for defamation by ensuring that those remedies are effective. In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages -- even absent a showing of "actual malice." [Footnote 7]VThe only remaining issue is whether petitioner's credit report involved a matter of public concern. In a related context, we have held that"[w]hether . . . speech addresses a matter of public concern must be determined by [the expression's] content, form, and context . . . as revealed by the whole record."Connick v. Myers, supra, at 461 U. S. 147-148. Page 472 U. S. 762 These factors indicate that petitioner's credit report concerns no public issue. [Footnote 8] It was speech solely in the individual interest of the speaker and its specific business audience. Cf. Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U. S. 557, 447 U. S. 561 (1980). This particular interest warrants no special protection when -- as in this case the speech is wholly false and clearly damaging to the victim's business reputation. Cf. id. at 447 U. S. 566; Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 771-772 (1976). Moreover, since the credit report was made available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further, it cannot be said that the report involves any "strong interest in the free flow of commercial information." Id. at 425 U. S. 764. There is simply no credible argument that this type of credit reporting requires special protection to ensure that "debate on public issues [will] be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 270.In addition, the speech here, like advertising, is hardy and unlikely to be deterred by incidental state regulation. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. at 425 U. S. 771-772. It is solely motivated by the desire for profit, which, we have noted, is a force less likely to be deterred than others. Ibid. Arguably, the reporting here was also more objectively verifiable than speech deserving of greater protection. See ibid. In any case, the market provides a powerful incentive to a credit reporting Page 472 U. S. 763 agency to be accurate, since false credit reporting is of no use to creditors. Thus, any incremental "chilling" effect of libel suits would be of decreased significance. [Footnote 9]VIWe conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of "actual malice" does not violate the First Amendment when the defamatory statements do not involve matters of public concern. Accordingly, we affirm the judgment of the Vermont Supreme Court.It is so ordered | U.S. Supreme CourtDun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985)Dun & Bradstreet, Inc. v. Greenmoss BuildersNo. 83-18Argued March 21, 1984Decided June 26, 1985472 U.S. 749SyllabusPetitioner credit reporting agency sent a report to five subscribers indicating that respondent construction contractor had filed a voluntary petition for bankruptcy. The report was false, and grossly misrepresented respondent's assets and liabilities. Thereafter, petitioner issued a corrective notice, but respondent was dissatisfied with this notice and brought a defamation action in Vermont state court, alleging that the false report had injured its reputation and seeking damages. After trial, the jury returned a verdict in respondent's favor and awarded both compensatory or presumed damages and punitive damages. But the trial court believed that Gertz v. Robert Welch, Inc., 418 U. S. 323, controlled, and granted petitioner's motion for a new trial on the ground that the instructions to the jury permitted it to award damages on a lesser showing than "actual malice." The Vermont Supreme Court reversed, holding that Gertz was inapplicable to nonmedia defamation actions.Held: The judgment is affirmed.143 Vt. 66, 461 A.2d 414, affirmed.JUSTICE POWELL, joined by JUSTICE REHNQUIST and JUSTICE O'CONNOR, concluded that:1. The fact that the jury instructions in question referred to "malice," "lack of good faith," and "actual malice," did not require the jury to find "actual malice," as respondent contends, where the instructions failed to define any of these terms. Consequently, the trial court correctly concluded that the instructions did not satisfy Gertz. Pp. 472 U. S. 753-755.2. Permitting recovery of presumed and punitive damages in defamation cases absent a showing of "actual malice" does not violate the First Amendment when the defamatory statements do not involve matters of public concern. Pp. 472 U. S. 755-763.(a) In light of the reduced constitutional value of speech on matters of purely private concern, as opposed to speech on matters of public concern, the state interest in compensating private individuals for injury to their reputation adequately supports awards of presumed and punitive damages -- even absent a showing of "actual malice." Cf. Gertz. Pp. 472 U. S. 755-761.(b) Gertz, supra, does not apply to this case. Petitioner's credit report concerned no public issue but was speech solely in the individual Page 472 U. S. 750 interest of the speaker and its specific business audience. This particular interest warranted no special protection when it was wholly false and damaging to the victim's business reputation. Moreover, since the credit report was made available to only five subscribers, who, under the subscription agreement, could not disseminate it further, it cannot be said that the report involved any strong interest in the free flow of commercial information. And the speech here, like advertising, being solely motivated by a desire for profit, is hardy and unlikely to be deterred by incidental state regulation. In any event, the market provides a powerful incentive to a credit reporting agency to be accurate, since false reporting is of no use to creditors. Pp. 472 U. S. 761-763.THE CHIEF JUSTICE concluded that Gertz is inapplicable to this case, because the allegedly defamatory expression involved did not relate to a matter of public concern, and that no other reason was needed to dispose of the case. Pp. 472 U. S. 763-764.JUSTICE WHITE concluded that Gertz should not be applied to this case either because Gertz should be overruled or because the defamatory publication in question did not deal with a matter of public importance. P. 472 U. S. 774.POWELL, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST and O'CONNOR, JJ., joined. BURGER, C.J., post, p. 472 U. S. 763, and WHITE, J., post, p. 472 U. S. 765, filed opinions concurring in the judgment. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 472 U. S. 774. Page 472 U. S. 751 |
304 | 1987_86-978 | JUSTICE STEVENS delivered the opinion of the Court.In 1981, Congress amended the statute authorizing the Aid to Families with Dependent Children (AFDC) program to provide that a family receiving nonrecurring lump-sum income is ineligible for benefits for the number of months that the income would satisfy the family's standard of need. § 2304 of the Omnibus Budget Reconciliation Act of 1981, 95 Stat. 845, as amended, [Footnote 1] 42 U.S.C. § 602(a)(17) (1982 ed. and Supp. III); see generally Lukhard v. Reed, 481 U. S. 368, 481 U. S. 371-373 (1987) (plurality opinion); see also id. at 371 U. S. 384-386 (Powell, J., dissenting). [Footnote 2] In this case, the United Page 485 U. S. 418 States Court of Appeals for the Eighth Circuit held that the Minnesota Department of Human Services (the Department) could not enforce that amendment against respondent, and the class she represents, because it had not given them the notice required by a regulation promulgated by the Secretary of Health and Human Services (the Secretary), 45 CFR § 206.10(a)(2)(i) (1987). We granted certiorari to review the Court of Appeals' interpretation of the Secretary's regulation as well as its remedial decision in favor of an injunction barring the Department from recouping payments made to respondent during her period of ineligibility. Because we conclude that the regulation was not violated, we do not reach the remedy question.IOn October 31, 1983, respondent's husband received a retroactive Social Security disability payment of $5,752. Respondent used the entire lump sum to pay a $3,863.75 arrearage on the family's home mortgage, an overdue car repair bill of $1,366, and a legal fee of $150, and the remainder to purchase clothing for her children and to pay other bills. Within two days, the entire sum had been expended. [Footnote 3]On November 2, 1983, respondent reported the receipt (and the expenditure) of the Social Security payment to her caseworker and was advised that, under the 1981 amendment, her family would be ineligible for benefits for the next several months. [Footnote 4] She immediately filed an administrative appeal, Page 485 U. S. 419 and her family continued to receive benefits while the appeal was pending. See 45 CFR § 205.10(a)(6)(i) (1987). The Appeals Referee decided that the benefits should not be terminated, because the Jenkinses had not received any advance notice of the new lump-sum rule, App. 69-73, but the Department's Deputy Commissioner reversed. Id. at 73-76. While expressing disagreement with the policy implemented by the 1981 amendment, he concluded that the federal statute must be enforced even though the lack of advance notice had produced a "harsh result." [Footnote 5]When the administrative review proceedings terminated in August, the Jenkins family was again eligible for benefits. The Department's decision, however, meant that benefits had been improperly paid for the period between October, 1983, and May, 1984. Accordingly, as required by the federal statute, see 42 U.S.C. § 602(a)(22) (1982 ed. and Supp. III); see also 45 CFR § 233.20(a)(13) (1987), in due course the Department Page 485 U. S. 420 ordered recoupment of the wrongfully paid benefits by deducting 1% from each future AFDC monthly payment, in accordance with state law, see Minn.Stat. § 256.73, subd. 6 (1986).Shortly after the conclusion of the state administrative proceedings, respondent intervened in an action already pending in Federal District Court challenging the Department's lump-sum policy on various grounds. [Footnote 6] In her complaint in intervention, App. 14, 20, respondent added an allegation that the Department's implementation of the new lump-sum rule without adequate notice to AFDC applicants and recipients violated the Secretary's regulation. The District Court certified Page 485 U. S. 421 a class [Footnote 7] and entered summary judgment in its favor on the notice issue. Slaughter v. Levine, 598 F. Supp. 1035, 1049-1052 (Minn.1984).The District Court awarded two forms of relief. First, it required the Department to prepare a written notice that adequately explained the lump-sum policy and to distribute it to all current AFDC recipients and all future applicants. Id. at 1055. Second, it ordered the Department to notify all class members who had been injured by the Department's violation that they might apply for corrective payments from their local welfare agencies. Ibid. The court concluded that the Eleventh Amendment prevented it from ordering any repayment of benefits that had been improperly denied, ibid., or from enjoining the Department from recouping overpayments to families like the Jenkinses. Slaughter v. Levine, 621 F. Supp. 509, 513-514 (Minn.1985). For the purposes of relief, the District Court determined that members of the class who did not expend any portion of their lump-sum payments before they received notice of the current lump-sum policy had not been injured by the Department's violation of the federal notice regulation. 598 F. Supp. at 1055. [Footnote 8] Page 485 U. S. 422A divided panel of the Court of Appeals affirmed the District Court's judgment insofar as it found a violation of the notice regulation and denied monetary relief to members of the class. Slaughter v. Levine, 801 F.2d 288 (CA8 1986) (case below). It concluded, however, that the District Court should have enjoined the Department from recouping any amounts that were treated as "overpayments" under the post-1981 policy if they would have been proper under the pre-1981 lump-sum rule. In explaining its basic holding, the Court of Appeals pointed out that advance notice to lump-sum recipients was necessary to achieve the purposes of the 1981 amendment, [Footnote 9] and that to impose the new rule on a family that assumed that the old rule was still in effect "would be truly Kafkaesque." [Footnote 10] The dissenting judge did not believe Page 485 U. S. 423 that either the statute or the notice regulation conditioned the implementation of the new rule on advance notice to the small percentage of AFDC beneficiaries affected by it. He construed the regulation as simply requiring "the state to publicize generally in written form, and orally as appropriate, the AFDC program and its availability." Id. at 303 (Fagg, J., dissenting). Because of the significance of the Court of Appeals' holding for States' administration of welfare laws, we granted certiorari, 482 U.S. 926 (1987).IIThe Secretary's notice regulation, which was first adopted in 1971 and later amended in 1978 and 1979, now provides:"Applicants shall be informed about the eligibility requirements and their rights and obligations under the program. Under this requirement individuals are given information in written form, and orally as appropriate, about coverage, conditions of eligibility, scope of the program, and related services available, and the rights and responsibilities of applicants for and recipients of assistance. Specifically developed bulletins or pamphlets explaining the rules regarding eligibility and appeals in simple, understandable terms are publicized and available in quantity."45 CFR § 206.10(a)(2)(i) (1987).Pursuant to this regulation, the Department has prepared and distributed two brief printed brochures. The first contains four pages and generally describes the AFDC program, the application process, the benefit levels, and the applicant's basic procedural rights. The pamphlet states that the"information in this brochure will help you decide if you wish to apply for AFDC, but it is not intended to cover all program rules. . . . You are urged to contact your welfare office for specific information as to the eligibility rules and limitations for AFDC. Since these can and do change from time to Page 485 U. S. 424 time, you should inquire with your welfare office for up-to-date information."App. 29.The second brochure is a six-page booklet entitled "Monthly Reporting: What AFDC Households Must Know"; it explains the recipient's duty to report all of the household income each month. Although some of the intricacies of the AFDC program are explained, it does not comment specifically on the lump-sum rule. In addition to using pamphlets such as these, the Department relies on its caseworkers to provide applicants and recipients with oral advice about the aspects of the program that are relevant to specific situations.When the 1981 amendment was enacted, the Department did not prepare a new pamphlet. It did, however, on September 18, 1981, send a letter to all AFDC recipients advising them that there had been 19 major changes in the AFDC program. The paragraph commenting on the new lump-sum rule was not a model of clarity, [Footnote 11] but presumably it at least alerted the reader to the existence of the new rule. Since the letter was just mailed to those already receiving AFDC benefits, however, it did not provide any notice to a family that did not apply for benefits until a later date. Such a family might not learn about the operation of the lump-sum rule until it reported the receipt of a payment to a caseworker; if, as was true in the Jenkins' case, the money had already been Page 485 U. S. 425 spent, it would obviously be too late for the family to budget the use of that money to replace its normal AFDC checks.The question for us to decide is not whether advance written notice is desirable, or, indeed, whether such notice is necessary to accomplish the purposes of the 1981 statute. The question is whether the preexisting regulation was intended to forestall the implementation of a congressionally mandated program change until the state agencies provided all AFDC recipients with notice of the change. Although such a rule might well represent sound policy, we do not believe that a fair reading of the text of § 206.10(a)(2)(i) conveys that message.It is true that the regulation requires that individuals be given "information in written form, and orally as appropriate, about . . . conditions of eligibility," but that is hardly how one would write a command stating that every such condition must be identified and explained before it may be enforced. The reference to "information" in both written and oral form "about" various aspects of the program seems to require, instead, merely a general descriptive statement regarding AFDC benefits. Thus, the plain language of the regulation does not require that information be disseminated regarding every specific change in eligibility requirements.Indeed, it is doubtful whether the notice requirement even applies to AFDC recipients. [Footnote 12] The notice provision appears Page 485 U. S. 426 in a section that contains various rules regarding "[a]pplication, determination of eligibility and furnishing of assistance," 45 CFR § 206.10 (1987). The section speaks to how one may apply for benefits, general conditions of eligibility, the time frame within which States must determine eligibility, basic rules about the furnishing of assistance to recipients, and general procedures for redetermining eligibility due to changed circumstances. The regulation in question in this case, § 206.10(a)(2)(i), both on its face and in context of the section as a whole, quite plainly speaks to how general information about the program must be provided to individuals seeking assistance, that is, to program applicants. See § 206.10(b)(1) (defining "applicant"). The very next provision in the section, in fact, states that"[p]rocedures shall be adopted which are designed to assure that recipients make timely and accurate reports of any change in circumstances which may affect their eligibility or the amount of assistance."§ 206.10(a)(2)(ii) (emphasis added). In other words, the drafters of this regulation wrote separately about two types of information that must be communicated: in § 206.10 (a)(2)(i), about providing applicants with program information, and, in § 206.10(a)(2)(ii), about developing procedures for recipients themselves to provide information about changed circumstances that might affect their benefits. The requirement of § 206.10(a)(2)(i) that information be given to applicants in "written form, and orally as appropriate," seems in fact to require no mailing of information at all, but rather simply explains that printed information about access to AFDC benefits, such as pamphlets, booklets, and flyers, be Page 485 U. S. 427 available, and that such information may be transmitted orally as well. [Footnote 13]Respondent contends that the notice provision applies to recipients of AFDC benefits, as well as applicants. She points to § 206.10(a)(1)(iii), which provides that"[a]n applicant may be assisted, if he so desires, by an individual(s) of his choice (who need not be a lawyer) in the various aspects of the application process and the redetermination of eligibility and may be accompanied by such individual(s) in contacts with the agency and when so accompanied may also be represented by them."Since "redetermination of eligibility" involves "a review of factors affecting AFDC eligibility and payment amount," § 206.10(b)(4), and thus clearly applies to recipients, respondent contends that "applicant" is used in § 206.10(a)(1)(iii) to include recipients as well, and therefore must have the same inclusive meaning throughout § 206.10, including the notice provision. Page 485 U. S. 428We are unpersuaded. The term "recipients" is used in various other provisions in the section, and appears simply to have been inadvertently omitted at this juncture. The definition of the term "applicant," understood in the context of eligibility "redetermination," makes this omission apparent. An "applicant" is"a person who has, directly, or through his authorized representative, or where incompetent or incapacitated, through someone acting responsibly for him, made application for public assistance from the agency administering the program, and whose application has not been terminated."§ 206.10(b)(1). Since redetermination of benefits affects only those who have already been "determined to be eligible," § 206.10(a)(9), and an "applicant," by definition, has not yet been determined to be eligible, it would therefore be impossible for an applicant's case to be redetermined. Thus, it is plain that § 206.10(a)(1)(iii) omitted the word "recipient" when referring to redetermination. [Footnote 14]Thus, a reading of the plain language of the notice provision and other provisions in the same section reveals that Page 485 U. S. 429 only applicants, and not recipients, are addressed by the requirement that individuals be given information about the program. Further, even as to applicants, the notice provision requires only that general program information be available, in "written form" and "orally as appropriate." [Footnote 15]The Secretary, who is responsible for enforcing the regulation, does not agree with the strict interpretation adopted by the District Court. Rather, he believes that it is generally appropriate to rely on an oral explanation of the consequences of receiving a lump-sum payment when the recipient reports it to the family's caseworker. [Footnote 16] We recognize that Page 485 U. S. 430 the Secretary had not taken a position on this question until this litigation. However, when it is the Secretary's regulation that we are construing, and when there is no claim in this Court that the regulation violates any constitutional or statutory mandate, we are properly hesitant to substitute an alternative reading for the Secretary's unless that alternative reading is compelled by the regulation's plain language or by other indications of the Secretary's intent at the time of the regulation's promulgation.Finally, respondent's emphasis on the harsh result in this particular case [Footnote 17] is actually, in large part, a criticism of the Page 485 U. S. 431 lump-sum rule itself. The record indicates that, even if respondent had known about the rule, she would have been hard-pressed not to use most of the $5,752 payment to avoid a foreclosure of the mortgage on the family home and to make promised payments to other creditors. Further, even though the rule, combined with the absence of advance notice, may have produced a "Kafkaesque" result for the Jenkins family, it is not irrational to assume that most needy families will realize that the receipt of a large lump sum may affect their future eligibility for benefits, and that it would be prudent to inform their caseworkers of the development before spending the money. Moreover, the harshness of the result is somewhat mitigated by the facts that the family's benefits continued during the administrative appeal, and that the recoupment process only subtracts 1% of each monthly AFDC check, and the further fact that, if AFDC benefits are actually terminated, a family may be immediately eligible for another form of public assistance, albeit a less generous one. In all Page 485 U. S. 432 events, since the regulation was written long before the lump-sum rule was enacted, it clearly was not designed to forestall the harsh consequences suffered by the Jenkinses.In the final analysis, our decision rests on our agreement with the Secretary and the dissenting judge in the Court of Appeals that the regulation simply requires the State to publish a general description of the basic structure of the AFDC program and its availability. We would require a much more precise mandate to the States to permit courts to interfere with the workings of governmental benefits programs by ordering the taking of certain affirmative steps. [Footnote 18]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 | U.S. Supreme CourtGardebring v. Jenkins, 485 U.S. 415 (1988)Gardebring v. JenkinsNo. 86-978Argued January 13, 1988Decided April 19, 1988485 U.S. 415SyllabusIn 1981, the federal statute authorizing the Aid to Families with Dependent Children (AFDC) program was amended to provide that a family receiving nonrecurring lump-sum income is ineligible for benefits for the number of months that the income would satisfy the family's standard of need. In 1983, respondent's husband received a lump-sum Social Security disability payment, which was expended within two days to pay family bills. Respondent reported the receipt and expenditure of the lump-sum payment to her Minnesota Department of Human Services (Department) caseworker and was advised that, under the 1981 amendment, her family would be ineligible for benefits for the next several months. The family continued to receive benefits while respondent's administrative appeal was pending, but the Department ultimately concluded that the federal statute must be enforced even though respondent had not received advance notice of the new lump-sum rule. Respondent then intervened in a pending class action in Federal District Court; the court held that the Department's implementation of the new lump-sum rule without adequate notice to AFDC applicants and recipients violated a federal notice regulation that, as promulgated by the Secretary of Health and Human Services (Secretary) before the 1981 amendment was enacted, requires that individuals be given "information in written form, and orally as appropriate, about . . . conditions of eligibility." The Court of Appeals affirmed the District Court's judgment in pertinent part.Held: The federal notice regulation was not violated by the Department. Pursuant to the regulation, the Department has distributed two printed brochures that generally describe the AFDC program and the recipient's duty to report all household income monthly. When the 1981 amendment was enacted, the Department sent a letter to all AFDC recipients advising them of the major changes in the program and alerting them to the new lump-sum rule. The plain language of the federal regulation does not require that information be disseminated regarding every specific change in eligibility requirements. Moreover, the plain language of the notice provision and of other provisions in the same section of the Page 485 U. S. 416 regulations establishes that only applicants, and not recipients, are addressed by the requirement that individuals be given information about the program. Further, even as to applicants, the notice provision requires only that printed information about access to AFDC benefits be available, and that such information may be transmitted orally as well. Finally, the Secretary believes it appropriate to rely on an oral explanation of the consequences of receiving a lump-sum payment when the recipient reports it to the family's caseworker. In sum, the notice regulation simply requires the State to publish a general description of the basic structure of the AFDC program and its availability. Pp. 485 U. S. 423-432.801 F.2d 288, reversed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, and SCALIA, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BRENNAN, J., joined, and in which MARSHALL, J., joined as to the last paragraph, post, p. 485 U. S. 432. KENNEDY, J., took no part in the consideration or decision of the case. Page 485 U. S. 417 |
305 | 1974_73-1346 | MR. JUSTICE POWELL delivered the opinion of the Court.The District Court for the District of Columbia preliminarily enjoined appellants, the Secretary of the Air Force and five Air Force officers, [Footnote 1] from proceeding with Page 421 U. S. 23 appellee DeChamplain's court-martial (i) on charges based upon Art. 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934, and (ii) on any charges whatever unless appellants allowed civilian defense counsel and certain other persons unlimited access to documents material to DeChamplain's defense. 367 F. Supp. 1291 (1973). The military authorities appealed directly to this Court, averring jurisdiction under 28 U.S.C. § 1252. We postponed the jurisdictional question to the hearing on the merits. 418 U.S. 904 (1974). We hold the case properly here under § 1252 and, finding its disposition controlled by our intervening decisions in Parker v. Levy, 417 U. S. 733 (1974) and Schlesinger v. Councilman, 420 U. S. 738 (1975), vacate the preliminary injunction and remand with directions to dismiss the action.IArticle 134 provides, inter alia, that"crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense. . . ."This clause of the article is an assimilative crimes provision, conferring court-martial jurisdiction over service-connected, noncapital federal offenses not covered by specific provisions of the Code. [Footnote 2] In 1971, court-martial charges were preferred Page 421 U. S. 24 under this provision against appellee DeChamplain, an Air Force master sergeant. Specifically, DeChamplain was charged with having copied classified documents, in violation of 18 U.S.C. § 793(b), and with having attempted to deliver such copies to an unauthorized person, in violation of 18 U.S.C. § 793(d). DeChamplain was also charged, under Art. 81 of the Uniform Code, 10 U.S.C. § 881, with conspiracy to communicate classified information to an agent of a foreign government, in violation of Art. 134 and 50 U.S.C. § 783(b), and, under Art. 92, 10 U.S.C. § 892, with failure to obey an Air Force regulation requiring that contacts with foreign agents be reported. All of these charges were premised on allegations that, while stationed in Thailand, DeChamplain twice had been in the company of a Soviet embassy official and subsequently was found in possession of 24 official Air Force documents, ranging in classification from "confidential" to "top secret." The general court-martial convicted DeChamplain of all charges. On appeal, the Air Force Court of Military Review held that certain inculpatory statements made by DeChamplain should not have been admitted into evidence; the court therefore reversed the conviction and remanded for a new trial. [Footnote 3] The Court of Military Appeals affirmed. [Footnote 4]The military authorities then prepared to retry DeChamplain before a general court-martial on substantially the same charges. The charges were amended, however, to delete all allegations pertaining to three of the classified documents, the Air Force choosing to forgo prosecution as to these documents, rather than compromise their confidentiality. The Air Force also decided not to introduce Page 421 U. S. 25 at the new trial 12 of the documents, assertedly because of their connection with DeChamplain's inadmissible inculpatory statements. Copies of all of these documents are contained in the record of DeChamplain's first court-martial, to which the Air Force has given DeChamplain's military counsel full access. Civilian defense counsel, however, were allowed access only to unclassified portions of the record, and thus were not permitted to inspect those documents that will not be in issue at the retrial. The Air Force authorized DeChamplain, his military counsel, chief civilian counsel, one legal associate, and one secretary to have access to the nine remaining documents that the charges against DeChamplain now concern. It imposed restrictions, however, on the use of the documents: they were to be examined only in the presence of persons with appropriate security clearances; no copies were to be made; written notes pertaining to classified information were to remain in Air Force custody; and the information was not to be discussed with anyone other than those who had been authorized access.At a pretrial hearing conducted pursuant to 10 U.S.C. § 839, DeChamplain challenged these restrictions. The presiding military judge sustained the restrictions, but granted the civilian defense team access to portions of the original record pertaining to the nine documents still at issue, subject to the restrictions applicable to the documents themselves. DeChamplain also moved to dismiss the charges on various grounds, claiming, inter alia, that Art. 134 was unconstitutional. The presiding judge denied the motion. DeChamplain made the same claims in three petitions to the Court of Military Appeals for extraordinary relief. That court denied the petitions, [Footnote 5] stating Page 421 U. S. 26 on the last occasion that "[a] petition for extraordinary relief is not a substitute for appeal." [Footnote 6]DeChamplain's second court-martial was to begin on November 15, 1973. On October 3, he filed this action in the District Court seeking injunctive relief and asserting, among other claims, that Art. 134 was unconstitutionally vague and that the limitations on access to and use of the classified documents denied him due process and effective assistance of counsel. The defendant military authorities moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The court denied the motion. It agreed with the military authorities that "generally, a serviceman must first exhaust his military remedies before a federal court will interfere with court martial proceedings." 367 F. Supp. at 1294. The court believed, however, that the circumstances of the case justified an exception to the rule. Because the issues presented in the case were "purely legal," and did "not necessitate determinations which the military forum is best equipped to make," and because "Sergeant DeChamplain [would] be denied fundamental constitutional guarantees" unless the court intervened, the court concluded that there as no justification for deferring consideration of the issues until after DeChamplain's court-martial and subsequent military appellate review. Ibid.The District Court further concluded that DeChamplain had satisfied the requirements for a preliminary injunction. It ruled that the unconstitutionality of Art. 134 was clear from the decisions of the Courts of Appeals in Avrech v. Secretary of the Navy, 155 U.S.App.D.C. 352, 477 F.2d 1237 (1973), and Levy v. Parker, Page 421 U. S. 27 478 F.2d 772 (CA3 1973), both of which were then pending on certiorari in this Court. The District Court further held that the restrictions on access to the nine documents that the charges now concern and to the record of the previous court-martial were "clearly excessive," and abridged DeChamplain's right to a fair trial.Finally, the court concluded that DeChamplain adequately had demonstrated irreparable injury: he had been in confinement since before his original court-martial and, if again convicted, would remain confined pending review by the military appellate courts. [Footnote 7] The District Court therefore preliminarily enjoined the military authorities from proceeding with the Art. 134 charges. It further enjoined prosecution "on any and all charges" unless the Air Force granted "full and unlimited access to all documents relevant and material to the case" to DeChamplain's civilian defense counsel"and such legal associates and assistants, subject to an appropriate protective order, as are necessary to said counsel's adequate preparation for trial. [Footnote 8]"IIThe case comes to us in a most unusual posture. Insofar as the complaint sought an injunction against enforcement Page 421 U. S. 28 of Art. 134 on the ground of its asserted unconstitutionality, the case falls within the literal mandate of 28 U.S.C. § 2292. That section provides that"[a]n interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges. . . ."Although neither of the parties to this suit applied to the District Court for convention of a three-judge court, the section's requirement is jurisdictional, and, if it applies, a single district judge has no power to act. See, e.g., Flemming v. Nestor, 363 U. S. 603, 363 U. S. 606-607 (1960); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 372 U. S. 153 (1963). A single judge, however, can dismiss the action for want of justiciability or general subject matter jurisdiction. Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 419 U. S. 100 (1974). We also have held that general subject matter jurisdiction is lacking when the claim of unconstitutionality is insubstantial, i.e., obviously without merit or clearly concluded by this Court's previous decisions. Ex parte Poresky, 290 U. S. 30, 290 U. S. 32 (1933); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U. S. 713, 370 U. S. 715 (1962); Goosby v. Oser, 409 U. S. 512, 409 U. S. 518-519 (1973).The District Court here, however, obviously did not consider DeChamplain's constitutional claim insubstantial; on the contrary, the court denied the motion to dismiss and went on to grant a preliminary injunction. According to DeChamplain, a three-judge court was deemed unnecessary at the time the complaint was filed not because his claim was insubstantial, but because the unconstitutionality of the statute appeared settled by the Court of Appeals decision in Avrech v. Secretary of the Navy, supra, a decision binding on the District Court. Page 421 U. S. 29 Hence, it is said, the case seemed to present a variant, however attenuated, of Bailey v. Patterson, 369 U. S. 31 (1962), and the District Court thought itself empowered to act since the "decision could not possibly go in any manner save one." [Footnote 9]But the prediction proved to be ill-founded; subsequently, the Court of Appeals decision in Avrech was reversed by this Court. Secretary of the Navy v. Avrech, 418 U. S. 676 (1974). In consequence of this, appellee DeChamplain argued in his motion to dismiss and brief to this Court that the question of Art. 134's constitutionality was substantial, and thus a three-judge court was required. Moreover, if this is so, appellee urges, this Court has no jurisdiction of the appeal, and the appeal must be dismissed. [Footnote 10]Appellee bases this argument on our decisions concerning appellate jurisdiction under 28 U.S.C. § 1253. That section allows a direct appeal to this Court"from an order granting or denying . . . an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges."On its face, this provision would seem to allow a direct appeal to this Court if a single district judge grants or denies an injunction, when, under 28 U.S.C. § 2281 or 2282, the case was "required . . . to be heard and determined" by a three-judge court. This Court has read the statute, however, as allowing direct appeals only from Page 421 U. S. 30 "orders actually entered by three-judge courts." Gonzalez v. Automatic Employees Credit Union, supra, at 419 U. S. 96 n. 14. See Stratton v. St. Louis S.W. R. Co., 282 U. S. 10, 282 U. S. 15-16 (1930). And we have held that, when a single district judge fails to call for the convention of a three-judge court and goes on to dispose of the case, an appeal lies only to the court of appeals. Idlewild Bon Voyage Liquor Corp. v. Epstein, supra; Hicks v. Pleasure House, Inc., 404 U. S. 1, 404 U. S. 3 (1971).Appellants here, however, premise this Court's jurisdiction on 28 U.S.C. § 1252, rather than § 1253. Section 1252 provides in pertinent part:"Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party."The requisites of this provision are met in this case. This is a civil action; the appellant military authorities are, of course, officers of the United States, acting in their official capacities; and Art. 134 is an "Act of Congress." It might be argued that, in deciding to issue the preliminary injunction, the District Court made only an interlocutory determination of appellee's probability of success on the merits, and did not finally "hold" the article unconstitutional. By its terms, however, § 1252 applies to interlocutory, as well as final, judgments, decrees, and orders, and this Court previously has found the section properly invoked when the court below has made only an interlocutory determination of unconstitutionality, at least if, as here, that determination forms the necessary predicate to the grant or denial of preliminary equitable relief. Fleming v. Rhodes, 331 U. S. 100 (1947). In Page 421 U. S. 31 this case, as in United States v. Raines, 362 U. S. 17, 362 U. S. 20 (1960), it is clear that "the basis of the decision below, in fact, was that the Act of Congress was unconstitutional. . . ."In his motion to dismiss, appellee argued that § 1252 should be subject to the limitations placed on direct appeals to this Court under § 1253. In other words, § 1252 should not be read as allowing a direct appeal from an injunctive order erroneously entered by a single district judge, and instead appeal should be allowed only when the district court acted within its jurisdiction. [Footnote 11] Such a gloss on § 1252 perhaps would be "consonant with the overriding policy, historically encouraged by Congress, of minimizing the mandatory docket of this Court. . . ." Gonzalez v. Automatic Employees Credit Union, supra, at 419 U. S. 98. We think, however, that, in § 1252, Congress unambiguously mandated an exception to this policy in the narrow circumstances that the section identifies. The language of the statute sufficiently demonstrates its purpose: to afford immediate review in this Court in civil actions to which the United States or its officers are parties and thus will be bound by a holding of unconstitutionality. The purpose of § 1252 is too plain to allow circumvention, whatever doubts may be entertained about the wisdom of mandatory direct review in other circumstances. Our previous cases have recognized that this Court's jurisdiction under § 1252 in no way depends on whether the district court had jurisdiction. On the contrary, an appeal under § 1252 brings before us, not only the constitutional question, but the whole case, e.g., United States v. Raines, supra at 362 U. S. 27 n. 7; see 9 J. Moore, Federal Practice � 110.03 [5], Page 421 U. S. 32 p. (2d ed.1973), including threshold issues of subject matter jurisdiction, United States v. American Friends Service Committee, 419 U. S. 7, 419 U. S. 12 n. 7 (1974), and whether a three-judge court was required, Flemming v. Nestor, 363 U. S. 603 (1960). [Footnote 12] We follow these cases and hold that, whether the District Court did or did not have jurisdiction to act, this case is properly here under § 1252.IIIProper disposition of the case does not require extended discussion. Appellants argue that, in fact, DeChamplain's constitutional claim was always insubstantial. The Courts of Appeals decisions in Levy v. Parker and Avrech v. Secretary of the Navy, which concluded that Art. 134 suffered from unconstitutional vagueness, concerned only the first two clauses of that article making punishable "all disorders and neglects to the prejudice of good order and discipline in the armed forces" and "all conduct of a nature to bring discredit upon the armed forces." DeChamplain, however, was charged under the assimilative crimes clause of the article, and was accused of having committed specific federal offenses. Thus, any possible vagueness in other parts of the article could not have affected DeChamplain. At this point, however, no purpose could be served by our deciding whether, when the complaint was filed, DeChamplain's constitutional claim was or was not substantial. Under our decisions in Levy and Avrech, DeChamplain's claim is, as he concedes, [Footnote 13] clearly insubstantial now, and must be dismissed. [Footnote 14] Page 421 U. S. 33We turn, finally, to the portion of the preliminary injunction requiring the military authorities to allow unlimited access to the original court-martial record and to documents that will be at issue at DeChamplain's court-martial. Since this claim is independent of the Art. 134 question and unrelated to the validity and interpretation of that article or to any other Act of Congress, a three-judge court was not required to hear it. As to this claim, however, the only harm DeChamplain claimed in support of his prayer for equitable relief was that, if convicted, he might remain incarcerated pending review within the military system. Thus, according to DeChamplain, intervention is justified now to ensure that he receives a trial free of constitutional error, and to avoid the possibility that he will be incarcerated, pending review, on the basis of a conviction that inevitably will be invalid. But if such harm were deemed sufficient to warrant equitable interference into pending court-martial proceedings, any constitutional ruling at the court-martial presumably would be subject to immediate relitigation in federal district courts, resulting in disruption to the court-martial and circumvention of the military appellate system provided by Congress.We hold that relief as to the access claim is precluded squarely by our holding in Schlesinger v. Councilman, 420 U.S. at 420 U. S. 758, that"when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention. . . ."The "unlimited access" aspect Page 421 U. S. 34 of DeChamplain's suit therefore must be dismissed for failure to state a claim upon which relief can be granted.Vacated and remanded | U.S. Supreme CourtMcLucas v. DeChamplain, 421 U.S. 21 (1975)McLucas v. DeChamplainNo. 73-1346Argued December 9, 1974Decided April 15, 1975421 U.S. 21SyllabusAppellee, an Air Force master sergeant whose court-martial conviction for violations of Art. 134 of the Uniform Code of Military Justice involving, inter alia, unauthorized use of classified documents and information, had been reversed for improper admission of certain evidence, and whose retrial was about to commence, filed this action for injunctive relief in Federal District Court against appellant military authorities, asserting that Art. 134 was unconstitutionally vague and that certain limitations imposed by the military authorities on the defense's pretrial access to classified documents in issue denied him due process and effective assistance of counsel. The District Court preliminarily enjoined appellants from proceeding with the court-martial on the Art. 134 charges, and also on any other charges unless civilian defense counsel and certain other persons were allowed unlimited access to documents material to the defense. The court held that the circumstances justified an exception to the rule requiring a serviceman to exhaust his military remedies before a federal court will interfere with court-martial proceedings, that the unconstitutionality of Art. 134 was clear from the Courts of Appeals decisions in Avrech v. Secretary of the Navy, 155 U.S.App.D.C. 352, 477 F.2d 1237, and Levy v. Parker, 478 F.2d 772, that the restrictions placed on access to documents were excessive, and that appellee had adequately shown irreparable injury. Appellants directly appealed to this Court under 28 U.S.C. § 1252, which allows appeal from"an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action . . . to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party."Held:1. Whether a three-judge district court was or was not required under 28 U.S.C. § 2282 as to appellee's Art. 134 claim, the case is properly before this Court on appeal under 28 U.S.C. § 1252, since it is a civil action, appellants are officers of the United States Page 421 U. S. 22 acting in their official capacities, Art. 134 is an "Act of Congress," and "the basis of the decision below, in fact, was that the Act of Congress was unconstitutional," United States v. Raines, 362 U. S. 17, 362 U. S. 20. Pp. 421 U. S. 27-32.2. Under this Court's decisions in Parker v. Levy, 417 U. S. 733, and Secretary of the Navy v. Avrech, 418 U. S. 676, holding that Art. 134 is not unconstitutionally vague, appellee's constitutional claim as to Art. 134 is clearly insubstantial, and must be dismissed. P. 421 U. S. 32.3. Relief as to appellee's access claim is squarely precluded by this Court's holding in Schlesinger v. Councilman, 420 U. S. 738, that"when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention,"and hence the "unlimited access" aspect of appellee's suit must be dismissed for failure to state a claim upon which relief can be granted. Pp. 421 U. S. 33-34.367 F. Supp. 1291, vacated and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 421 U. S. 34. |
306 | 1956_370 | MR. JUSTICE CLARK delivered the opinion of the Court.This is a suit for damages arising from an injury suffered by a section foreman of the petitioner while operating a motor track car that was towing a push truck on petitioner's tracks. It was brought under the Federal Employers' Liability Act. The sole question is whether such vehicles, when used in the manner here, are within the coverage of the Safety Appliance Acts. [Footnote 1] The petitioner contends that neither vehicle comes within the general coverage of the Acts, and, in the alternative, if the vehicles are included, that they are exempted as "four-wheel cars" under § 6 of the Acts. [Footnote 2]Both the trial court and the Court of Appeals have decided that the vehicles involved here are included within the coverage of the Safety Appliance Acts, and that neither falls within any exemption contained therein. The case reaches us on certiorari, 352 U.S. 889. We agree with the two-court interpretation of the Acts as applied to the facts here involved. Page 353 U. S. 327The respondent was injured over five years ago. For 39 years, he had been a section foreman of track maintenance for petitioner. He and the crew over which he had supervision were responsible for the maintenance and repair of a section of track between Waring and Durwood, Maryland. They used in their work a gasoline motor-powered track car equipped with belt drive and a hand brake. The car could carry as many as 12 men and their tools. At various times, a push truck or hand car was coupled by a pin to the motor track car, and was towed by it to the scene of the work. The hand car weighed about 800 pounds unloaded, had a 5-ton carrying capacity, and had no brakes. Sometimes it carried a load of material, and other times only equipment and tools. Each of these cars was equipped with four wheels, and was capable of being removed from the rails by a crew of men.On the occasion in question, respondent and a crew of two men, pursuant to orders, had hauled about a ton of coal via the motor track car and hand car from Gaithersburg to the stationmaster at Washington Grove, a station near the scene of their roadbed work on that day. The coal was placed on the hand car, which was pulled along the tracks by the motor car. The two vehicles also carried tools, a wheelbarrow, and other equipment, as well as the respondent and his crew. After unloading the coal, they proceeded a short distance beyond the Washington Grove station to work on a section of the westbound track. There, they removed the vehicles from the track and worked that section of the rails until about 4 p.m. They then replaced the vehicles on the tracks, fastened them together, and began the return trip to the yards at Gaithersburg. On approaching the Washington Grove station at a speed of from 5 to 10 miles per hour, the vehicles struck a large dog and derailed, throwing the respondent into a ditch and causing his injuries. The Page 353 U. S. 328 uncontradicted evidence was that respondent applied the hand brake on the motor track car immediately upon seeing the dog, and the cars skidded on wet tracks about 39 feet before the impact. Respondent further testified that the motor track car alone, without the hand car attached, could have been stopped under the same conditions within six to eight feet.Respondent brought his action against the railroad claiming that (1) the petitioner was negligent in directing him to operate a motor track car and push truck without sufficient braking power, and in requiring him to pull the push truck over wet, slippery rails when the truck was not equipped with brakes, and (2) the injury was proximately caused by petitioner's noncompliance with the requirements of the Safety Appliance and Boiler Inspection Acts. The District Court ruled and instructed the jury that the provisions of the Safety Appliance Acts included within their coverage the vehicles in question. The issues in both causes of action were submitted to the jury, which returned with a verdict for respondent on "the issues aforesaid." The appeal in the Court of Appeals was directed only to the second cause of action concerning the applicability of the Safety Appliance Acts. That court affirmed, 98 U.S.App.D.C. 169, 233 F.2d 660, and, as has already been indicated, we are faced here only with the problem of the coverage of the Safety Appliance Acts.The power or train brake provisions of the Safety Appliance Acts apply to the motor track car and the coupling and brake requirements to the hand car when they are employed in the manner here involved. If used separately, though we do not pass on the question, it may well be that entirely different sections of the Acts might apply to each of the vehicles. But here, the hand car was not operated by hand, as was originally intended. Page 353 U. S. 329 On the contrary, it was fastened by a pin -- not a coupler -- to a motor track car, a self-propelled piece of equipment, and was hauled with its cargo to its destination on the tracks of petitioner. The hand car had no brakes, although the Acts specifically require "any car" to be equipped with a hand brake. [Footnote 3] It was being used for hauling purposes. Furthermore, the motor track car, instead of being used solely to carry men and tools to their place of work, was used to pull or tow another car -- albeit a hand car. It had no power or train brakes, but was equipped with a simple hand brake designed for its individual operation. The brake was wholly insufficient for the use to which the railroad put the vehicles.We believe that the controlling factor is the nature of the employment of the vehicles in the railroad's service, that is, the type of operation for which they are being used. Here, at the time of the injury, it is admitted that petitioner was putting the motor track car to locomotive uses in pulling a hand car used to haul material, tools, and equipment. In the light of the prime purpose of the Safety Appliance Acts, i.e., "the protection of employees and others by requiring the use of safe equipment," Lilly v. Grand Trunk Western R. Co., 317 U. S. 481, 317 U. S. 486 (1943), when the railroad uses this type of equipment in this manner -- regardless of the label it places on the vehicles -- the commands of the Acts must be obeyed. The operation as conducted, when the respondent was injured, with a motor track car equipped with neither power nor train brakes pulling an attached hand car with neither an automatic Page 353 U. S. 330 coupler nor hand brake, was in defiance of the requirements of the Acts. See 45 U.S.C. §§ 1-8. This is not to say that these vehicles, even when used as herein described, must be equipped with devices not adaptable to their safe operation. As was said in Southern R. Co. v. Crockett, 234 U. S. 725 (1914):"We deem the true intent and meaning to be that the provisions and requirements respecting train brakes, automatic couplers, grab irons, and the height of draw-bars shall be extended to all railroad vehicles . . . so far as the respective safety devices and standards are capable of being installed upon the respective vehicles."Id. at 234 U. S. 737-738. It is said that there is no place on the vehicles in question here for a grab iron or a handhold, and that power brakes might well increase the hazards of their operation. This may be true, but, if these vehicles are to be used in a manner such as here, the Commission, through the promulgation of standards or regulations covering such equipment, should adapt the safety requirements of the Acts to the safe use of such vehicles, and thus protect employees and the public from the hazards of their operation.It is contended that, since the Commission has for over 60 years considered maintenance of way vehicles not subject to the Acts, this consistent administrative interpretation is persuasive evidence that the Congress never intended to include them within its coverage. It is true that long administrative practice is entitled to weight, Davis v. Manry, 266 U. S. 401, 266 U. S. 405 (1925), but here, there has been no expressed administrative determination of the problem. [Footnote 4] We believe petitioner overspeaks Page 353 U. S. 331 in elevating negative action to positive administrative decision. In our view, the failure of the Commission to act is not a binding administrative interpretation that Congress did not intend these cars to come within the purview of the Acts. See Shields v. Atlantic Coast Line R. Co., 350 U. S. 318, 350 U. S. 321-322 (1956).The fact that the Commission has not sponsored legislation rather indicates that it thought the problem too insignificant for consideration. We think the Commission expresses this view in its amicus curiae brief when it says"the needs are for strict enforcement of sound operating rules and regulations, rather than for air brakes, automatic couplers, and the other devices specified in the Safety Appliance Acts."But this is a matter of policy for the Congress to decide, and it wrote into the Safety Appliance Acts that their coverage embraced "all trains, locomotives, tenders, cars, and similar vehicles." [Footnote 5] This plain language could not have been more all-inclusive. This Court has construed the language of the Act in its generic sense. In Johnson v. Southern Pacific Co., 196 U. S. 1 (1904), with reference to the meaning of the word "car," the Court said:"There is nothing to indicate that any particular kind of car was meant. Tested by context, Page 353 U. S. 332 subject matter, and object, 'any car' meant all kinds of cars running on the rails, including locomotives."Id. at 196 U. S. 15-16. See also Spokane & Inland E. R. Co. v. Campbell, 241 U. S. 497 (1916).While there is a paucity of cases on the point, with none to the contrary of our holding here, as early as 1934, in Hoffman v. New York, N.H. & H. R. Co., 74 F.2d 227, the Court of Appeals for the Second Circuit held a hand car or push truck, identical with the one here involved, and a small gasoline tractor subject to the Acts. The hand car was attached to the gasoline tractor by means of a hook (though the engine had an automatic coupler on one end), and the petitioner was injured when the hook dislodged and he was pinned between the car and the locomotive. The court unanimously held that, if a hand car"is to be operated by a locomotive [which it held the gasoline tractor to be], rather than by hand, we are not inclined to depart from the literal terms of the statute and dispense with the requirement of an automatic coupler."Id., 74 F.2d at 232. Three years later, the requirement of the Acts as to power or train brakes was held applicable to other than standard equipment in United States v. Ft. Worth & D.C. R. Co., 21 F. Supp. 916. There, a trial court in the Northern District of Texas held that, where a locomotive crane was "used to haul cars . . . , it is being used for the purposes for which a locomotive is used and is a locomotive . . . , regardless of whatever else it might also be." Id. at 918. In 1955, the Supreme Court of Florida unanimously, held in Martin v. Johnston, 79 So. 2d 419, that the same type motor track car as is involved here came within the terms of the Acts. There, the motor track car was being used entirely separately and independently from any other vehicle. The Safety Acts require all cars to be equipped with "efficient hand brakes." The failure of the brakes was the cause of Page 353 U. S. 333 the injury. The court commented:"There being as much reason for requiring the motor car in question to be equipped with efficient handbrakes, to insure its safe operation when propelled under its own power, as there is for the requirement that such a car be equipped with automatic couplers, where it is to be used in connection with a train movement, we have the view that the Safety Appliance Acts are applicable and that we are not authorized to depart from the literal terms of the statute."Id., 79 So. 2d at 420.Nor do we find that § 6 of the Acts exempts these vehicles from the provisions of the Acts. Though it is true that the cars are of the four-wheel variety, they are used neither in coal trains nor as logging cars. As the Commission points out in its amicus curiae brief, the proviso of § 6 originally exempted "trains composed of four-wheel cars or . . . locomotives used in hauling such trains," and the legislative history shows that this provision was enacted specifically to exempt coal cars. 24 Cong.Rec. 1477. This language was incorporated in the phraseology of the present section, which admittedly, through error, was thought to apply to the exemption of trains composed of logging cars. See H.R. Rep. No. 727, 54th Cong., 1st Sess. The legislative history of the section reveals beyond doubt that it has no application here.In view of the history and purposes of the Safety Appliance Acts, and the literal language used by the Congress that they embraced "any car" [Footnote 6] and "any locomotive engine . . . hauling . . . any car," [Footnote 7] together with the practical necessity of affording safety appliances to thousands of railroad maintenance employees, as well as the public, we conclude that the motor track car and hand car, Page 353 U. S. 334 when used by the petitioner in the manner employed here, must be equipped in accordance with the requirements of the Safety Appliance Acts.Affirmed | U.S. Supreme CourtBaltimore & Ohio Ry. Co. v. Jackson, 353 U.S. 325 (1957)Baltimore & Ohio Railway Co. v. JacksonNo. 370Argued March 28, April 1, 1957Decided May 13, 1957353 U.S. 325SyllabusIn this suit under the Federal Employers' Liability Act, a section foreman of a railroad was awarded damages for injuries sustained while operating a gasoline-powered motor track car pulling a hand car hauling material, tools, and equipment. Each car had only four wheels. The cars were fastened together by a pin, not a coupler. The motor track car had only hand brakes, and the hand car had no brakes. There was evidence that the accident resulted from want of adequate brakes for the use to which the cars were being put. The sole issue before this Court was whether such vehicles, when used in the manner here involved, are within the coverage of the Safety Appliance Acts.Held:1. The motor track car and hand car, when used in the manner employed here, must be equipped in accordance with the requirements of the Safety Appliance Acts. Pp. 353 U. S. 328-333.(a) When a railroad puts a motor track car to locomotive use in pulling a hand car used to haul material, tools and equipment, the commands of the Acts must be obeyed. Pp. 353 U. S. 329-330.(b) That, for 60 years, the Interstate Commerce Commission had not required such cars to be equipped in accordance with the Acts is not a binding administrative interpretation that Congress did not intend these cars to come within the purview of the Acts when used in the manner here involved. Pp. 353 U. S. 330-331.(c) Whether the Safety Appliance Acts should apply to such cars is a matter of policy for Congress to decide, and it made the Acts applicable all-inclusively to "all trains, locomotives, tenders, cars, and similar vehicles." Pp. 353 U. S. 331-333.2. Though they had only four wheels each, these cars were not exempted from the Acts by § 6, which exempts certain "trains composed of four-wheel cars." P. 353 U. S. 333.98 U.S.App.D.C. 169, 233 F.2d 660, affirmed. Page 353 U. S. 326 |
307 | 1976_76-357 | MR. JUSTICE MARSHALL delivered the opinion of the Court.This case presents the question whether the First Amendment permits a municipality to prohibit the posting of "For Sale" or "Sold" signs when the municipality acts to stem what it perceives as the flight of white homeowners from a racially integrated community.Petitioner Linmark Associates, a New Jersey corporation, owned a piece of realty in the township of Willingboro, N.J. Petitioner decided to sell its property, and on March 26, 1974, listed it with petitioner Mellman, a real estate agent. To attract interest in the property, petitioners desired to place a "For Sale" sign on the lawn. Willingboro, however, narrowly limits the types of signs that can be erected on land in the township. Although prior to March, 1974, "For Sale" and "Sold" signs were permitted subject to certain restrictions not at issue here, on March 18, 1974, the Township Council enacted Ordinance 1974, repealing the statutory authorization for such signs on all but model homes. Petitioners brought this action against both the township and the building inspector charged with enforcing the ban on "For Sale" signs, seeking declaratory and injunctive relief. [Footnote 1] The District Page 431 U. S. 87 Court granted a declaration of unconstitutionality, but a divided Court of Appeals reversed, 535 F.2d 786 (CA3 1976). We granted certiorari, 429 U.S. 938 (1976), and reverse the judgment of the Court of Appeals.IThe township of Willingboro is a residential community located in southern New Jersey near Fort Dix, McGuire Air Force Base, and offices of several national corporations. The township was developed as a middle-income community by Levitt & Sons, beginning in the late 1950's. It is served by over 80 real estate agents.During the 1960's Willingboro underwent rapid growth. The white population increased by almost 350%, and the nonwhite population rose from 60 to over 5,000, or from .005% of the population to 11.7%. As of the 1970 census, almost 44,000 people resided in Willingboro. In the 1970's, however, the population growth slowed; from 1970 to 1973, the latest year for which figures were available at the time of trial, Willingboro's population rose by only 3%. More significantly, the white population actually declined by almost 2,000 in this interval, a drop of over 5%, while the nonwhite population grew by more than 3,000, an increase of approximately 60%. By 1973, nonwhites constituted 18.2% of the township's population.At the trial in this case, respondents presented testimony from two real estate agents, two members of the Township Council, and three members of the Human Relations Commission, all of whom agreed that a major cause in the decline in Page 431 U. S. 88 the white population was "panic selling" -- that is, selling by whites who feared that the township was becoming all black, and that property values would decline. One real estate agent estimated that the reason 80% of the sellers gave for their decision to sell was that "the whole town was for sale, and they didn't want to be caught in any bind." App. in No. 75-1448 (CA3), pp. 219a-220a. Respondents' witnesses also testified that, in their view, "For Sale" and "Sold" signs were a major catalyst of these fears.William Kearns, the Mayor of Willingboro during the year preceding enactment of the ordinance and a member of the Council when the ordinance was enacted, testified concerning the events leading up to its passage. Id. at 183a-186a. According to Kearns, beginning at least in 1973, the community became concerned about the changing population. At a town meeting in February, 1973, called to discuss "Willingboro, to sell or not to sell," a member of the community suggested that real estate signs be banned. The suggestion received the overwhelming support of those attending the meeting. Kearns brought the proposal to the Township Council, which requested the Township Solicitor to study it. The Council also contacted National Neighbors, a nationwide organization promoting integrated housing, and obtained the names of other communities that had prohibited "For Sale" signs. After obtaining a favorable report from Shaker Heights, Ohio, on its ordinance, and after receiving an endorsement of the proposed ban from the Willingboro Human Relations Commission, the Council began drafting legislation.Rather than following its usual procedure of conducting a public hearing only after the proposed law had received preliminary Council approval, the Council scheduled two public meetings on Ordinance 5-1974. The first took place in February, 1974, before the initial Council vote, and the second in March, 1974, after the vote. At the conclusion of the second hearing, the ordinance was approved unanimously. Page 431 U. S. 89The transcripts of the Council hearings were introduced into evidence at trial. They reveal that, at the hearings, the Council received important information bearing on the need for and likely impact of the ordinance. With respect to the justification for the ordinance, the Council was told (a) that a study of Willingboro home sales in 1973 revealed that the turnover rate was roughly 11%, App. in No. 71448 (CA3), p. 89a; [Footnote 2] (b) that, in February, 1974 -- a typical month -- 230 "For Sale" signs were posted among the 11,000 houses in the community, id. at 94a, 37a; [Footnote 3] and (c) that the Willingboro Tax Assessor had reported that, "by and large, the increased value of Willingboro properties was way ahead of . . . comparable communities." Id. at 106a. With respect to the projected effect of the ordinance, several real estate agents reported that 30%-35% of their purchaser-clients came to them because they had seen one of the agent's "For Sale" or "Sold" signs, id. at 33a, 47a, 49a, 7a, [Footnote 4] and one agent estimated, based on his experience in a neighboring community that had already banned signs, that selling realty without signs takes twice as long as selling with signs, id. at 42a.The transcripts of the Council hearings also reveal that the hearings provided useful barometers of public sentiment toward the proposed ordinance. The Council was told, for Page 431 U. S. 90 example, that surveys in two areas of the township found overwhelming support for the law, id. at 29a, 84a. [Footnote 5] In addition, at least at the second meeting, the citizens who were not real estate agents and who spoke favored the proposed ordinance by a sizable margin. Interestingly, however, at both meetings, those defending the ordinance focused primarily on aesthetic considerations and on the effect of signs -- and transiency generally -- on property values. Few speakers directly referred to the changing racial composition of Willingboro in supporting the proposed law.Although the ordinance had been in effect for nine months prior to trial, no statistical data were presented concerning its impact. Respondents' witnesses all agreed, however, that the number of persons selling or considering selling their houses because of racial fears had declined sharply. But several of these witnesses also testified that the number of sales in Willingboro had not declined since the ordinance was enacted. Moreover, respondents' real estate agent witnesses both stated that their business had increased by 25% since the ordinance was enacted, id. at 164a, 226a, and one of these agents reported that the racial composition of his clientele remained unchanged, id. at 160a.The District Court did not make specific findings of fact. In the course of its opinion, however, the court stated that Willingboro"is, to a large extent, a transient community, partly due to its proximity to the military facility at Fort Dix and in part due to the numerous transfers of real estate."The court also stated that there was "no evidence" that whites were leaving Willingboro en masse as "For Sale" signs appeared, but "merely an indication that its residents are concerned that there may be a large influx of minority groups moving in to the town, with the resultant effect being a reduction Page 431 U. S. 91 in property values." The Court of Appeals essentially accepted these "findings," although it found that Willingboro was experiencing "incipient" panic selling, 535 F.2d at 799, and that a "fear psychology [had] developed," id. at 790.IIAThe starting point for analysis of petitioners' First Amendment claim must be the two recent decisions in which this Court has eroded the "commercial speech" exception to the First Amendment. In Bigelow v. Virginia, 421 U. S. 809 (1975), decided less than two years ago, this Court for the first time expressed its dissatisfaction with the then prevalent approach of resolving a class of First Amendment claims simply by categorizing the speech as "commercial." Id. at 421 U. S. 826. "Regardless of the particular label," we stated,"a court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation."Ibid. After conducting such an analysis in Bigelow, we concluded that Virginia could not constitutionally punish the publisher of a newspaper for printing an abortion referral agency's paid advertisement which not only promoted the agency's services but also contained information about the availability of abortions.One year later, in Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976), we went further. Conceding that"[s]ome fragment of hope for the continuing validity of a 'commercial speech' exception arguably might have persisted because of the subject matter of the advertisement in Bigelow,"id. at 425 U. S. 760, we held, quite simply, that commercial speech is not "wholly outside the protection of the First Amendment," id. at 425 U. S. 761. Although recognizing that "[S]ome forms of commercial speech regulations" -- such as regulation of false or misleading speech -- "are surely permissible," Page 431 U. S. 92 id. at 425 U. S. 770, we had little difficulty in finding that Virginia's ban on the advertising of prescription drug prices by pharmacists was unconstitutional. [Footnote 6]Respondents contend, as they must, that the "For Sale" signs banned in Willingboro are constitutionally distinguishable from the abortion and drug advertisements we have previously considered. It is to the distinctions respondents advance that we now turn.BIf the Willingboro law is to be treated differently from those invalidated in Bigelow and Virginia Pharmacy Bd., it cannot be because the speakers-- or listeners -- have a lesser First Amendment interest in the subject matter of the speech that is regulated here. Persons desiring to sell their homes are just as interested in communicating that fact as are sellers of other goods and services. Similarly, would-be purchasers of realty are no less interested in receiving information about available property than are purchasers of other commodities in receiving like information about those commodities. And the societal interest in "the free flow of commercial information," Virginia Pharmacy Bd., supra at 425 U. S. 764, is in no way lessened by the fact that the subject of the commercial information here is realty, rather than abortions or drugs. Page 431 U. S. 93Respondents nevertheless argue that First Amendment concerns are less directly implicated by Willingboro's ordinance because it restricts only one method of communication. This distinction is not without significance to First Amendment analysis, since laws regulating the time, place, or manner of speech stand on a different footing from laws prohibiting speech altogether. Cf., e.g., Kovacs v. Cooper, 336 U. S. 77 (1949); Adderley v. Florida, 385 U. S. 39 (1966); Grayned v. City of Rockford, 408 U. S. 104 (1972). Respondents' effort to defend the ordinance on this ground is unpersuasive, however, for two reasons.First, serious questions exist as to whether the ordinance "leave[s] open ample alternative channels for communication," Virginia Pharmacy Bd., supra at 425 U. S. 771. Although, in theory, sellers remain free to employ a number of different alternatives, in practice, realty is not marketed through leaflets, sound trucks, demonstrations, or the like. The options to which sellers realistically are relegated -- primarily newspaper advertising and listing with real estate agents -- involve more cost and less autonomy than "For Sale" signs; cf. Martin v. City of Struthers, 319 U. S. 141, 319 U. S. 146 (1943); Kovacs v. Cooper, supra at 336 U. S. 102-103 (Black, J., dissenting); are less likely to reach persons not deliberately seeking sales information, cf. United States v. O'Brien, 391 U. S. 367, 391 U. S. 388-389 (1968) (Harlan, J., concurring); and may be less effective media for communicating the message that is conveyed by a "For Sale" sign in front of the house to be sold, cf. Cohen v. California, 403 U. S. 15, 403 U. S. 25-26 (1971). The alternatives, then, are far from satisfactory.Second, the Willingboro ordinance is not genuinely concerned with the place of the speech -- front lawns -- or the manner of the speech -- signs. The township has not prohibited all lawn signs -- or all lawn signs of a particular size or shape -- in order to promote aesthetic values or any other value "unrelated to the suppression of free expression," United Page 431 U. S. 94 States v. O'Brien, supra at 391 U. S. 377. [Footnote 7] Nor has it acted to restrict a mode of communication that "intrudes on the privacy of the home, . . . makes it impractical for the unwilling viewer or auditor to avoid exposure," Erznoznik v. City of Jacksonville, 422 U. S. 205, 422 U. S. 209 (1975), or otherwise reaches a group the township has a right to protect. [Footnote 8] And respondents have not demonstrated that the place or manner of the speech produces a detrimental "secondary effect" on society, Young v. American Mini Theatres, 427 U. S. 50, 427 U. S. 71 n. 34 (1976). Rather, Willingboro has proscribed particular types of signs based on their content because it fears their "primary" effect -- that they will cause those receiving the information to act upon it. That the proscription applies only to one mode of communication, therefore, does not transform this into a "time, place, or manner" case. See, e.g., Erznoznik v. City of Jacksonville, supra; Police Department of Chicago v. Mosley, 408 U. S. 92 (1972); Tinker v. Des Moines School Dist., 393 U. S. 503, 393 U. S. 510 (1969). If the ordinance is to be sustained, it must be on the basis of the township's interest in regulating the content of the communication, and not on any interest in regulating the form.CRespondents do seek to distinguish Bigelow and Virginia Pharmacy Bd. by relying on the vital goal this ordinance serves: namely, promoting stable, racially integrated housing. There can be no question about the importance of achieving this goal. This Court has expressly recognized that substantial benefits flow to both whites and blacks from interracial Page 431 U. S. 95 association and that Congress has made a strong national commitment to promote integrated housing. Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972).That this ordinance was enacted to achieve an important governmental objective, however, does not distinguish the case from Virginia Pharmacy Bd. In that case, the State argued that its prohibition on prescription drug price advertising furthered the health and safety of state residents by preventing low cost, low quality pharmacists from driving reputable pharmacists out of business. We expressly recognized the "strong interest" of a State in maintaining "professionalism on the part of licensed pharmacists." 425 U.S. at 425 U. S. 766. But we nevertheless found the Virginia law unconstitutional because we were unpersuaded that the law was necessary to achieve this objective, and were convinced that, in any event, the First Amendment disabled the State from achieving its goal by restricting the free flow of truthful information. For the same reasons, we conclude that the Willingboro ordinance at issue here is also constitutionally infirm.The record here demonstrates that respondents failed to establish that this ordinance is needed to assure that Willingboro remains an integrated community. [Footnote 9] As the District Court concluded, the evidence does not support the Council's apparent fears that Willingboro was experiencing a substantial incidence of panic selling by white homeowners. A fortiori, the evidence does not establish that "For Sale" signs in front of 2% of Willingboro homes were a major cause of panic selling. And the record does not confirm the township's Page 431 U. S. 96 assumption that proscribing such signs will reduce public awareness of realty sales, and thereby decrease public concern over selling. [Footnote 10]The constitutional defect in this ordinance, however, is far more basic. The Township Council here, like the Virginia Assembly in Virginia Pharmacy Bd., acted to prevent its residents from obtaining certain information. That information, which pertains to sales activity in Willingboro, is of vital interest to Willingboro residents, since it may bear on one of the most important decisions they have a right to make: where to live and raise their families. The Council has sought to restrict the free flow of these data because it fears that, otherwise, homeowners will make decisions inimical to what the Council views as the homeowners' self-interest and the corporate interest of the township: they will choose to leave town. The Council's concern, then, was not with any commercial aspect of "For Sale" signs -- with offerors communicating offers to offerees -- but with the substance of the information communicated to Willingboro citizens. If dissemination of this information can be restricted, then every locality in the country can suppress any facts that reflect poorly on the locality, so long as a plausible claim can be made that disclosure would cause the recipients of the information to act "irrationally." Virginia Pharmacy Bd. denies government such sweeping Page 431 U. S. 97 powers. As we said there in rejecting Virginia's claim that the only way it could enable its citizens to find their self-interest was to deny them information that is nether false nor misleading:"There is . . . an alternative to this highly paternalistic approach. That alternative is to assume that this information is not, in itself, harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication, rather than to close them. . . . But the choice among these alternative approaches is not ours to make or the Virginia General Assembly's. It is precisely this kind of choice, between the dangers of suppressing information and the dangers of its misuse if it is freely available, that the First Amendment makes for us."425 U.S. at 425 U. S. 770. Or, as Mr. Justice Brandeis put it:"If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression."Whitney v. California, 274 U. S. 357, 274 U. S. 377 (1927) (concurring opinion).Since we can find no meaningful distinction between Ordinance 5-1974 and the statute overturned in Virginia Pharmacy Bd., we must conclude that this ordinance violates the First Amendment.IIIIn invalidating this law, we by no means leave Willingboro defenseless in its effort to promote integrated housing. The township obviously remains free to continue "the process of education" it has already begun. It can give widespread publicity -- through "Not for Sale" signs or other methods -- to the number of whites remaining in Willingboro. And it surely can endeavor to create inducements to retain individuals who are considering selling their homes. Page 431 U. S. 98Beyond this, we reaffirm our statement in Virginia Pharmacy Bd. that the"common sense differences between speech that does 'no more than propose a commercial transaction,' Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. [376,] 413 U. S. 385 [(1973)], and other varieties . . . suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired."425 U.S. at 425 U. S. 771-772, n. 24. Laws dealing with false or misleading signs, and laws requiring such signs to "appear in such a form, or include such additional information . . . as [is] necessary to prevent [their] being deceptive," ibid., therefore, would raise very different constitutional questions. We leave those questions for another day, and simply hold that the ordinance under review here, which impairs "the flow of truthful and legitimate commercial information" is constitutionally infirm.Reversed | U.S. Supreme CourtLinmark Assocs., Inc. v. Township of Willingboro, 431 U.S. 85 (1977)Linmark Associates, Inc. v. Township of WillingboroNo. 70-357Argued March 2, 1977Decided May 2, 1977431 U.S. 85SyllabusA township ordinance prohibiting the posting of real estate "For Sale" and "Sold" signs for the purpose of stemming what the township perceived as the flight of white homeowners from a racially integrated community held to violate the First Amendment. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U. S. 748. Pp. 431 U. S. 91-98.(a) The ordinance cannot be sustained on the ground that it restricts only one method of communication while leaving ample alternative communication channels open. The alternatives (primarily newspaper advertising and listing with real estate agents, which involve more cost and less autonomy than signs, are less likely to reach persons not deliberately seeking sales information, and may be less effective) are far from satisfactory. And the ordinance is not genuinely concerned with the place (front lawns) or the manner (signs) of the speech, but rather proscribes particular types of signs based on their content because the township fears their "primary" effect -- that they will cause those receiving the information to act upon it. Pp. 431 U. S. 93-94.(b) Moreover, despite the importance of achieving the asserted goal of promoting stable, integrated housing, the ordinance cannot be upheld on the ground that it promotes an important governmental objective, since it does not appear that the ordinance was needed to achieve that objective and, in any event, the First Amendment disables the township from achieving that objective by restricting the free flow of truthful commercial information. Pp. 431 U. S. 94-97.535 F.2d 786, reversed.MARSHALL, J., delivered the opinion of the Court, in which all other Members joined except REHNQUIST, J., who took no part in the consideration or decision of the case. Page 431 U. S. 86 |
308 | 1978_77-1413 | MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari, 436 U.S. 943, to consider whether federal patent law preempts state contract law so as to preclude Page 440 U. S. 259 enforcement of a contract to pay royalties to a patent applicant, on sales of articles embodying the putative invention, for so long as the contracting party sells them, of a patent is not granted.(1)In October, 1955, the petitioner, Mrs. Jane Aronson, filed an application, Serial No. 542677, for a patent on a new form of keyholder. Although ingenious, the design was so simple that it readily could be copied unless it was protected by patent. In June, 1956, while the patent application was pending, Mrs. Aronson negotiated a contract with the respondent, Quick Point Pencil Co., for the manufacture and sale of the keyholder.The contract was embodied in two documents. In the first, letter from Quick Point to Mrs. Aronson, Quick Point agreed to pay Mrs. Aronson a royalty of 5% of the selling price in return for "the exclusive right to make and sell keyholders of the type shown in your application, Serial No. 542677." The letter further provided that the parties would consult one another concerning the steps to be taken "[i]n the event of any infringement."The contract did not require Quick Point to manufacture the keyholder. Mrs. Aronson received a $750 advance on royalties and was entitled to rescind the exclusive license if Quick Point did not sell a million keyholders by the end of 1957. Quick Point retained the right to cancel the agreement whenever "the volume of sales does not meet our expectations." The duration of the agreement was not otherwise prescribed.A contemporaneous document provided that, if Mrs. Aronson's patent application was "not allowed within five (5) years, Quick Point Pencil Co. [would] pay . . . two and one half percent (2 1/2%) of sales . . . so long as you [Quick Point] continue to sell same." * Page 440 U. S. 260In June, 1961, when Mrs. Aronson had failed to obtain a patent on the keyholder within the five years specified in the agreement, Quick Point asserted its contractual right to reduce royalty payments to 2 1/2% of sales. In September of that year, the Board of Patent Appeals issued a final rejection of the application on the ground that the keyholder was not patentable, and Mrs. Aronson did not appeal. Quick Point continued to pay reduced royalties to her for 14 years thereafter.The market was more receptive to the keyholder's novelty and utility than the Patent Office. By September, 1975 Quick Point had made sales in excess of $7 million and paid Mrs. Aronson royalties totaling $203,963.84; sales were continuing to rise. However, while Quick Point was able to preempt the market in the earlier years and was long the only manufacturer of the Aronson keyholder, copies began to appear in the late 1960's. Quick Point's competitors, of course, were not required to pay royalties for their use of the design. Quick Point's share of the Aronson keyholder market has declined during the past decade.(2)In November, 1975, Quick Point commenced an action in the United States District Court for a declaratory judgment, pursuant to 28 U.S.C. § 2201, that the royalty agreement was unenforceable. Quick Point asserted that state law which might otherwise make the contract enforceable was preempted by federal patent law. This is the only issue presented to us for decision. Page 440 U. S. 261Both parties moved for summary judgment on affidavits, exhibits, and stipulations of fact. The District Court concluded that the "language of the agreement is plain, clear and unequivocal, and has no relation as to whether or not a patent is ever granted." Accordingly, it held that the agreement was valid, and that Quick Point was obliged to pay the agreed royalties pursuant to the contract for so long as it manufactured the keyholder.The Court of Appeals reversed, one judge dissenting. 567 F.2d 757. It held that, since the parties contracted with reference to a pending patent application, Mrs. Aronson was estopped from denying that patent law principles governed her contract with Quick Point. Although acknowledging that this Court had never decided the precise issue, the Court of Appeals held that our prior decisions regarding patent licenses compelled the conclusion that Quick Point's contract with Mrs. Aronson became unenforceable once she failed to obtain a patent. The court held that a continuing obligation to pay royalties would be contrary to "the strong federal policy favoring the full and free use of ideas in the public domain," Lear, Inc. v. Adkins, 395 U. S. 653, 395 U. S. 674 (1969). The court also observed that, if Mrs. Aronson actually had obtained a patent, Quick Point would have escaped its royalty obligations either if the patent were held to be invalid, see ibid., or upon its expiration after 17 years, see Brulotte v. Thys Co., 379 U. S. 29 (1964). Accordingly, it concluded that a licensee should be relieved of royalty obligations when the licensor's efforts to obtain a contemplated patent prove unsuccessful.(3)On this record it is clear that the parties contracted with full awareness of both the pendency of a patent application and the possibility that a patent might not issue. The clause de-escalating the royalty by half in the event no patent issued within five years makes that crystal clear. Quick Point apparently placed a significant value on exploiting the basic novelty Page 440 U. S. 262 of the device, even if no patent issued; its success demonstrates that this judgment was well founded. Assuming, arguendo, that the initial letter and the commitment to pay a 5% royalty was subject to federal patent law, the provision relating to the 2 1/2% royalty was explicitly independent of federal law. The cases and principles relied on by the Court of Appeals and Quick Point do not bear on a contract that does not rely on a patent, particularly where, as here, the contracting parties agreed expressly as to alternative obligations if no patent should issue.Commercial agreements traditionally are the domain of state law. State law is not displaced merely because the contract relates to intellectual property which may or may not be patentable; the states are free to regulate the use of such intellectual property in any manner not inconsistent with federal law. Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 416 U. S. 479 (1974); see Goldstein v. California, 412 U. S. 546 (1973). In this as in other fields, the question of whether federal law preempts state law"involves a consideration of whether that 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, 312 U. S. 67 (1941)."Kewanee Oil Co., supra, at 416 U. S. 479. If it does not, state law governs.In Kewanee Oil Co., supra at 416 U. S. 480-481, we reviewed the purposes of the federal patent system. First, patent law seeks to foster and reward invention; second, it promotes disclosure of inventions to stimulate further innovation and to permit the public to practice the invention once the patent expires; third, the stringent requirements for patent protection seek to assure that ideas in the public domain remain there for the free use of the public.Enforcement of Quick Point's agreement with Mrs. Aronson is not inconsistent with any of these aims. Permitting inventors to make enforceable agreements licensing the use of their inventions in return for royalties provides an additional incentive to invention. Similarly, encouraging Mrs. Aronson Page 440 U. S. 263 to make arrangements for the manufacture of her keyholder furthers the federal policy of disclosure of inventions; these simple devices display the novel idea which they embody wherever they are seen.Quick Point argues that enforcement of such contracts conflicts with the federal policy against withdrawing ideas from the public domain and discourages recourse to the federal patent system by allowing states to extend "perpetual protection to articles too lacking in novelty to merit any patent at all under federal constitutional standards," Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 376 U. S. 232 (1964).We find no merit in this contention. Enforcement of the agreement does not withdraw any idea from the public domain. The design for the keyholder was not in the public domain before Quick Point obtained its license to manufacture it. See Kewanee Oil Co., supra at 416 U. S. 484. In negotiating the agreement, Mrs. Aronson disclosed the design in confidence. Had Quick Point tried to exploit the design in breach of that confidence, it would have risked legal liability. It is equally clear that the design entered the public domain as a result of the manufacture and sale of the keyholders under the contract.Requiring Quick Point to bear the burden of royalties for the use of the design is no more inconsistent with federal patent law than any of the other costs involved in being the first to introduce a new product to the market, such as outlays for research and development, and marketing and promotional expenses. For reasons which Quick Point's experience with the Aronson keyholder demonstrate, innovative entrepreneurs have usually found such costs to be well worth paying.Finally, enforcement of this agreement does not discourage anyone from seeking a patent. Mrs. Aronson attempted to obtain a patent for over five years. It is quite true that, had she succeeded, she would have received a 5% royalty only on Page 440 U. S. 264 keyholders sold during the 17-year life of the patent. Offsetting the limited terms of royalty payments, she would have received twice as much per dollar of Quick Point's sales, and both she and Quick Point could have licensed any others who produced the same keyholder. Which course would have produced the greater yield to the contracting parties is a matter of speculation; the parties resolved the uncertainties by their bargain.(4)No decision of this Court relating to patents justifies relieving Quick Point of its contract obligations. We have held that a state may not forbid the copying of an idea in the public domain which does not meet the requirements for federal patent protection. Compco Corp. v. Day-Brite Lighting, Inc., 376 U. S. 234 (1964); Sears, Roebuck Co. v. Stiffel Co., supra. Enforcement of Quick Point's agreement, however, does not prevent anyone from copying the keyholder. It merely requires Quick Point to pay the consideration which it promised in return for the use of a novel device which enabled it to preempt the market.In Lear, Inc. v. Adkins, 395 U. S. 653 (1969), we held that a person licensed to use a patent may challenge the validity of the patent, and that a licensee who establishes that the patent is invalid need not pay the royalties accrued under the licensing agreement subsequent to the issuance of the patent. Both holdings relied on the desirability of encouraging licensees to challenge the validity of patents, to further the strong federal policy that only inventions which meet the rigorous requirements of patentability shall be withdrawn from the public domain. Id. at 395 U. S. 670-671, 395 U. S. 673-674. Accordingly, neither the holding nor the rationale of Lear controls when no patent has issued, and no ideas have been withdrawn from public use.Enforcement of the royalty agreement here is also consistent with the principles treated in Brulotte v. Thys Co., 379 U. S. 29 (1964). There, we held that the obligation to pay Page 440 U. S. 265 royalties in return for the use of a patented device may not extend beyond the life of the patent. The principle underlying that holding was simply that the monopoly granted under a patent cannot lawfully be used to "negotiate with the leverage of that monopoly." The Court emphasized that to "use that leverage to project those royalty payments beyond the life of the patent is analogous to an effort to enlarge the monopoly of the patent. . . ." Id. at 379 U. S. 33. Here, the reduced royalty which is challenged, far from being negotiated "with the leverage" of a patent, rested on the contingency that no patent would issue within five years.No doubt a pending patent application gives the applicant some additional bargaining power for purposes of negotiating a royalty agreement. The pending application allows the inventor to hold out the hope of an exclusive right to exploit the idea, as well as the threat that the other party will be prevented from using the idea for 17 years. However, the amount of leverage arising from a patent application depends on how likely the parties consider it to be that a valid patent will issue. Here, where no patent ever issued, the record is entirely clear that the parties assigned a substantial likelihood to that contingency, since they specifically provided for a reduced royalty in the event no patent issued within five years.This case does not require us to draw the line between what constitutes abuse of a pending application and what does not. It is clear that whatever role the pending application played in the negotiation of the 5% royalty, it played no part in the contract to pay the 2 1/2% royalty indefinitely.Our holding in Kewanee Oil Co. puts to rest the contention that federal law preempts and renders unenforceable the contract made by these parties. There we held that state law forbidding the misappropriation of trade secrets was not preempted by federal patent law. We observed:"Certainly the patent policy of encouraging invention is not disturbed by the existence of another form of Page 440 U. S. 266 incentive to invention. In this respect, the two systems [patent and trade secret law] are not and never would be in conflict."416 U.S. at 416 U. S. 484.Enforcement of this royalty agreement is even less offensive to federal patent policies than state law protecting trade secrets. The most commonly accepted definition of trade secrets is restricted to confidential information which is not disclosed in the normal process of exploitation. See Restatement of Torts § 757, Comment b, p. 5 (1939). Accordingly, the exploitation of trade secrets under state law may not satisfy the federal policy in favor of disclosure, whereas disclosure is inescapable in exploiting a device like the Aronson keyholder.Enforcement of these contractual obligations, freely undertaken in arm's-length negotiation and with no fixed reliance on a patent or a probable patent grant, will"encourage invention in areas where patent law does not reach, and will prompt the independent innovator to proceed with the discovery and exploitation of his invention. Competition is fostered, and the public is not deprived of the use of valuable, if not quite patentable, invention."(Footnote omitted.) 416 U.S. at 416 U. S. 485.The device which is the subject of this contract ceased to have any secrecy as soon as it was first marketed, yet, when the contract was negotiated, the inventiveness and novelty were sufficiently apparent to induce an experienced novelty manufacturer to agree to pay for the opportunity to be first in the market. Federal patent law is not a barrier to such a contract.Reversed | U.S. Supreme CourtAronson v. Quick Point Pencil Co., 440 U.S. 257 (1979)Aronson v. Quick Point Pencil Co.No. 77-1413Argued December 6, 1978Decided February 28, 1979440 U.S. 257SyllabusPetitioner entered into a contract with respondent whereby, in return for the exclusive right to make and sell a keyholder designed by petitioner for which a patent application was pending, respondent agreed to pay petitioner a royalty of 5% of the selling price. If the patent was not allowed within five years, the royalty was to be reduced to 2 1/2% of sales. The patent was not allowed within five years, whereupon respondent accordingly reduced the royalty to 2 1/2%. Subsequently, the patent application was rejected. After respondent had paid petitioner royalties for a number of years following rejection of the patent application, it brought an action in District Court seeking a declaratory judgment that the royalty agreement was unenforceable on the ground that state law which otherwise made the contract enforceable was preempted by federal patent law. The District Court upheld the contract, but the Court of Appeals reversed, holding that the contract became unenforceable once petitioner failed to obtain a patent within the stipulated 5-year period, and that a continuing obligation to pay royalties would be contrary to "the strong federal policy in favor of the full and free use of ideas in the public domain," Lear, Inc. v. Adkins, 395 U. S. 653, 395 U. S. 674.Held: Federal patent law does not preempt state contract law so as to preclude enforcement of the contract. Cf. Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470. Pp. 440 U. S. 261-266.(a) Enforcement of the contract is not inconsistent with the purposes of the federal patent system (1) to foster and reward invention; (2) to promote disclosure of inventions, stimulate further innovation, and permit the public to practice the invention once the patent expires; and (3) to assure that ideas in the public domain remain there for the free use of the public. Pp. 440 U. S. 262-264.(b) Enforcement of the contract does not prevent anyone from copying the keyholder, but merely requires respondent to pay the consideration it promised in return for the use of a novel device which enabled it to preempt the market. P. 440 U. S. 264.(c) When, as here, no patent has issued, and no ideas have been withdrawn from public use, the case is not controlled by the holding of Lear, supra, that a patent licensee who establishes the invalidity of a patent need not pay royalties accrued after the issuance of the patent, Page 440 U. S. 258 nor by the rationale of that case that it is desirable to encourage licensees to challenge the validity of patents in order to further the strong federal policy that only inventions meeting the rigorous requirements of patentability shall be withdrawn from the public domain. P. 440 U. S. 264.(d) Enforcement of the contract comports with the principle that the monopoly granted under a patent cannot lawfully be used "to negotiate with the leverage of that monopoly," Brulotte v. Thys Co., 379 U. S. 29, 379 U. S. 33, since the challenged reduced royalty, rather than being so negotiated, rested on the contingency that no patent would issue within five years. Pp. 440 U. S. 264-265.567 F.2d 757, reversed.BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, POWELL, REHNQUIST, and STEVENS, JJ, joined. BLACKMUN, J., filed an opinion concurring in the result, post, p. 440 U. S. 266. |
309 | 1956_521 | MR. JUSTICE FRANKFURTER delivered the opinion of the Court.Petitioner was convicted of rape in the United States District Court for the District of Columbia, and, as authorized by the District Code, the jury imposed a Page 354 U. S. 450 death sentence. The Court of Appeals affirmed, one judge dissenting. 98 U.S.App.D.C. 406, 236 F.2d 701. Since an important question involving the interpretation of the Federal Rules of Criminal Procedure was involved in this capital case, we granted the petition for certiorari. 352 U.S. 877.The rape occurred at six p.m. on April 7, 1954, in the basement of the apartment house inhabited by the victim. She had descended to the basement a few minutes previous to wash some laundry. Experiencing some difficulty in detaching a hose in the sink, she sought help from the janitor, who lived in a basement apartment with his wife, two grown sons, a younger son and the petitioner, his nineteen-year-old half-brother. Petitioner was alone in the apartment at the time. He detached the hose and returned to his quarters. Very shortly thereafter, a masked man, whose general features were identified to resemble those of petitioner and his two grown nephews, attacked the woman. She had heard no one descend the wooden steps that furnished the only means of entering the basement from above.Petitioner and one of his grown nephews disappeared from the apartment house shortly after the crime was committed. The former was apprehended the following afternoon between two and two-thirty p.m., and was taken, along with his older nephews, also suspects, to police headquarters. At least four officers questioned him there in the presence of other officers for thirty to forty-five minutes, beginning the examination by telling him, according to his testimony, that his brother had said that he was the assailant. Petitioner strenuously denied his guilt. He spent the rest of the afternoon at headquarters, in the company of the other two suspects and his brother a good part of the time. About four p.m., the three suspects were asked to submit to "lie detector" tests, and they agreed. The officer in charge of the polygraph Page 354 U. S. 451 machine was not located for almost two hours, during which time the suspects received food and drink. The nephews were then examined first. Questioning of petitioner began just after eight p.m. Only he and the polygraph operator were present in a small room, the door to which was closed.Following almost an hour and one-half of steady interrogation, he "first stated that he could have done this crime, or that he might have done it. He finally stated that he was responsible. . . ." (Testimony of polygraph operator, R. 70.) Not until ten p.m., after petitioner had repeated his confession to other officers, did the police attempt to reach a United States Commissioner for the purpose of arraignment. Failing in this, they obtained petitioner's consent to examination by the deputy coroner, who noted no indicia of physical or psychological coercion. Petitioner was then confronted by the complaining witness and "[p]ractically every man in the Sex Squad," and, in response to questioning by three officers, he repeated the confession. Between eleven-thirty p.m. and twelve-thirty a.m., he dictated the confession to a typist. The next morning, he was brought before a Commissioner. At the trial, which was delayed for a year because of doubt about petitioner's capacity to understand the proceedings against him, the signed confession was introduced in evidence.The case calls for the proper application of Rule 5(a) of the Federal Rules of Criminal Procedure, promulgated in 1946, 327 U.S. 821. That Rule provides:"(a) APPEARANCE BEFORE THE COMMISSIONER. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer Page 354 U. S. 452 empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith."This provision has both statutory and judicial antecedents for guidance in applying it. The requirement that arraignment be "without unnecessary delay" is a compendious restatement, without substantive change, of several prior specific federal statutory provisions. (E.g., 20 Stat. 327, 341; 48 Stat. 1008; also 28 Stat. 416.) See Dession, The New Federal Rules of Criminal Procedure I, 55 Yale L.J. 694, 707. Nearly all the States have similar enactments.In McNabb v. United States, 318 U. S. 332, 318 U. S. 343-344, we spelled out the important reasons of policy behind this body of legislation:"The purpose of this impressively pervasive requirement of criminal procedure is plain. . . . The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard -- not only in assuring protection for the innocent, but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the 'third degree' which, though universally rejected as indefensible, still find their Page 354 U. S. 453 way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime."Since such unwarranted detention led to tempting utilization of intensive interrogation, easily gliding into the evils of "the third degree," the Court held that police detention of defendants beyond the time when a committing magistrate was readily accessible constituted "willful disobedience of law." In order adequately to enforce the congressional requirement of prompt arraignment, it was deemed necessary to render inadmissible incriminating statements elicited from defendants during a period of unlawful detention.In Upshaw v. United States, 335 U. S. 410, which came here after the Federal Rules of Criminal Procedure had been in operation, the Court made it clear that Rule 5(a)'s standard of "without unnecessary delay" implied no relaxation of the McNabb doctrine.The requirement of Rule 5(a) is part of the procedure devised by Congress for safeguarding individual rights without hampering effective and intelligent law enforcement. Provisions related to Rule 5(a) contemplate a procedure that allows arresting officers little more leeway than the interval between arrest and the ordinary administrative steps required to bring a suspect before the nearest available magistrate. Rule 4(a) provides:"If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue. . . ."Rule 4(b) requires that the warrant "shall command that the defendant be arrested and brought before the nearest available commissioner." And Rules 5(b) and (c) reveal the function of the requirement of prompt arraignment:"(b) STATEMENT BY THE COMMISSIONER. The commissioner shall inform the defendant of the complaint Page 354 U. S. 454 against him, of his right to retain counsel, and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement, and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel, and shall admit the defendant to bail as provided in these rules.""(c) PRELIMINARY EXAMINATION. The defendant shall not be called upon the plead. If the defendant waives preliminary examination, the commissioner shall forthwith hold him to answer in the district court. If the defendant does not waive examination, the commissioner shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him, and may introduce evidence in his own behalf. If, from the evidence, it appears to the commissioner that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the commissioner shall forthwith hold him to answer in the district court; otherwise, the commissioner shall discharge him. The commissioner shall admit the defendant to bail as provided in these rules."The scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion, but only on "probable cause." The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible, so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be "booked" by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt. Page 354 U. S. 455The duty enjoined upon arresting officers to arraign "without unnecessary delay" indicates that the command does not call for mechanical or automatic obedience. Circumstances may justify a brief delay between arrest and arraignment, as, for instance, where the story volunteered by the accused is susceptible of quick verification through third parties. But the delay must not be of a nature to give opportunity for the extraction of a confession.The circumstances of this case preclude a holding that arraignment was "without unnecessary delay." Petitioner was arrested in the early afternoon, and was detained at headquarters within the vicinity of numerous committing magistrates. Even though the police had ample evidence from other sources than the petitioner for regarding the petitioner as the chief suspect, they first questioned him for approximately a half hour. When this inquiry of a nineteen-year-old lad of limited intelligence produced no confession, the police asked him to submit to a "lie detector" test. He was not told of his rights to counsel or to a preliminary examination before a magistrate, nor was he warned that he might keep silent, and "that any statement made by him may be used against him." After four hours of further detention at headquarters, during which arraignment could easily have been made in the same building in which the police headquarters were housed, petitioner was examined by the lie detector operator for another hour and a half before his story began to waver. Not until he had confessed, when any judicial caution had lost its purpose, did the police arraign him.We cannot sanction this extended delay, resulting in confession, without subordinating the general rule of prompt arraignment to the discretion of arresting officers in finding exceptional circumstances for its disregard. In every case where the police resort to interrogation of Page 354 U. S. 456 an arrested person and secure a confession, they may well claim, and quite sincerely, that they were merely trying to check on the information given by him. Against such a claim and the evil potentialities of the practice for which it is urged stands Rule 5(a) as a barrier. Nor is there an escape from the constraint laid upon the police by that Rule in that two other suspects were involved for the same crime. Presumably, whomever the police arrest, they must arrest on "probable cause." It is not the function of the police to arrest, as it were, at large, and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on "probable cause."Reversed | U.S. Supreme CourtMallory v. United States, 354 U.S. 449 (1957)Mallory v. United StatesNo. 521Argued April 1, 1957.Decided June 24, 1957354 U.S. 449SyllabusPetitioner was convicted in a Federal District Court of rape, and sentenced to death after a trial in which there was admitted in evidence a confession obtained under the following circumstances: he was arrested early in the afternoon, and was detained at police headquarters within the vicinity of numerous committing magistrates. He was not told of his right to counsel or to a preliminary examination before a magistrate, nor was he warned that he might keep silent and that any statement made by him might be used against him. Not until after petitioner had confessed, about 9:30 p.m., was an attempt made to take him before a committing magistrate, and he was not actually taken before a magistrate until the next morning.Held: this was a violation of Rule 5(a) of the Federal Rules of Criminal Procedure, which requires that an arrested person be taken before a committing magistrate "without unnecessary delay," and the conviction is reversed. McNabb v. United States, 318 U. S. 332; Upshaw v. United States, 335 U. S. 410. Pp. 354 U. S. 449-456.98 U.S.App.D.C. 406, 236 F.2d 701, reversed and remanded. |
310 | 1970_92 | MR. JUSTICE WHITE delivered the opinion of the Court with respect 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 MR. JUSTICE BLACKMUN 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.IIndiana 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 Page 403 U. S. 128 legislators elected at large by the voters of the district. [Footnote 1] 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. . . . [Footnote 2]"Plaintiffs [Footnote 3] Chavis, Ramsey, and Bryant alleged that the two statutes invidiously diluted the force and effect of the vote of Page 403 U. S. 129 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 legislators 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 County Negroes. [Footnote 4] 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. [Footnote 5] The Page 403 U. S. 130 two remaining plaintiffs presented claims not at issue here. [Footnote 6]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. [Footnote 7] Page 403 U. S. 131The three-judge court filed its opinion containing its findings and conclusions on July 28, 1969, holding for plaintiffs. Chavis v. Whitcomb, 305 F. Supp. 134 (SD Ind.1969). See also 305 F. Supp. 1359 (1969) (pretrial orders) and 307 F. Supp. 1362 (1969) (state-wide 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. [Footnote 8] 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. [Footnote 9] The area contained a 1967 population Page 403 U. S. 132 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 Page 403 U. S. 133 in each of the five general assemblies elected during the period 1960 through 1968. [Footnote 10] 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 O.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 Page 403 U. S. 134 constituency."Ibid. Related findings were that, as a rule, a candidate could not be elected in Marion County unless his party carried the election; [Footnote 11] 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 Page 403 U. S. 135 substantive law, diverging significantly from interests of nonresidents of the ghetto. [Footnote 12]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 difficult 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. [Footnote 13] "Page 403 U. S. 1365. The apportionment statutes of Indiana as they relate to Marion County operate to minimize and cancel out the voting strength of 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, 384 U. S. 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 requirement prohibiting crossing or dividing counties for senatorial apportionment [Footnote 14] and still meet the requirements of the Equal Protection Clause adumbrated in recent cases. [Footnote 15]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, Page 403 U. S. 137 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. [Footnote 16] 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. [Footnote 17]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. [Footnote 18] Judgment was withheld in all respects, however, to give the State until October 1, 1969, to enact legislation Page 403 U. S. 138 remedying the improper districting and malapportionment found to exist by the court. [Footnote 19] 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. [Footnote 20] Page 403 U. S. 139On 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. [Footnote 21] Page 403 U. S. 140Appeal 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, we 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.IIWith 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 senatorial 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. Page 403 U. S. 141 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 discrimination against a cognizable minority group has 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.IIIThe 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 an inalienable right to full and effective participation in the political processes of his State's legislative bodies."Reynolds v. Sims, 377 U.S. at 377 U.S. 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 377 U. S. 563, unconstitutionally dilute the value of the votes in the larger districts. And hence the requirement that "the seats in both houses of a bicameral state legislature Page 403 U. S. 142 must be apportioned on a population basis." 377 U.S. at 377 U.S. 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 377 U. S. 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 Burnette v. Davis, 382 U. S. 42 (1965); Harrison v. Schaefer, 383 U. S. 269 (1966). [Footnote 22] That voters in multi-member Page 403 U. S. 143 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 we have deemed the validity of multi-member 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 379 U. S. 439, and Burns, 384 U.S. at 384 U. S. 88. Such a tendency, we have said, is enhanced when the district is large and elects a substantial proportion of the seats in either house of a bicameral legislature, if it is multi-member for both Page 403 U. S. 144 houses of the legislature or if it lacks provision for at-large candidates running from particular geographical subdistricts, as in Fortson. Burns, 384 U.S. at 384 U. S. 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.IVPlaintiffs 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 Marion 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 Page 403 U. S. 145 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, nor do we. But, like the District Court, we note that the position remains a theoretical one [Footnote 23] and, as plaintiffs' witness conceded, knowingly Page 403 U. S. 146 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. [Footnote 24]"The real-life impact of multi-member 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's having one representative with several votes. [Footnote 25] The District Court did not squarely Page 403 U. S. 147 sustain this position, [Footnote 26] but it appears to have found it sufficiently persuasive to have suggested uniform districting to the Indiana Legislature and to have eliminated multi-member 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-to-day 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 anything 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 Page 403 U. S. 148 multi-member districts generally. Moreover, Marion County would have no less advantage, if advantage 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. [Footnote 27] Of course it is advantageous to start with more than one vote for a bill. But nothing before us shows or suggests that 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.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 law 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, less than the proportion of legislators elected from Washington Township, a less populous district, and less than the ghetto would likely have elected had the Page 403 U. S. 149 county consisted of single member districts. [Footnote 28] 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) 229. 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 Page 403 U. S. 150 the evidence purport to show or the court find that inhabitants of the ghetto were regularly excluded from the slates of both major parties, thus denying them the chance of occupying legislative seats. [Footnote 29] 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. [Footnote 30] Clearly, in 1964 -- the one election that the Page 403 U. S. 151 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 Page 403 U. S. 152 parts of Center Township and two representatives from census tract 220, which was within the ghetto area described by plaintiff. [Footnote 31] 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. [Footnote 32] Page 403 U. S. 153 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 Republicans 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 differently. Conceding that all Marion County voters could fairly be said to be represented by the entire delegation, Page 403 U. S. 154 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 representatives; 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. [Footnote 33] As the trial court saw it, ghetto voters could not be adequately 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 Page 403 U. S. 155 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; 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. Page 403 U. S. 156VThe 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. [Footnote 34] 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. [Footnote 35] 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 Page 403 U. S. 157 at providing representation for minority parties or interests. [Footnote 36] 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. [Footnote 37]We are not insensitive to the objections long voiced to multi-member district plans. [Footnote 38] Although not as prevalent as they were in our early history, they have been Page 403 U. S. 158 with us since colonial times, and were much in evidence both before and after the adoption of the Fourteenth Amendment. [Footnote 39] Criticism is rooted in their winner-take-all Page 403 U. S. 159 aspects, their tendency to submerge minorities and to overrepresent the winning party as compared with the party's state-wide 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 Page 403 U. S. 160 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 Protection Clause in applying it to invalidate the Marion County multi-member district.VIEven 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 conclusions of law, it Page 403 U. S. 161 was justified in eliminating every multi-member district in the State of Indiana. It did not forthrightly sustain the theory that multi-member districts always overrepresent their voters to the invidious detriment of single-member residents. Nor did it examine any multi-member 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.VIIAt the same time, however, we reject defendant's suggestion that the court was wrong in ordering state-wide 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 1. [Footnote 40] These Page 403 U. S. 162 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 [Footnote 41] 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 state-wide redistricting, as district courts have done from the time Reynolds v. Sims, 377 U. S. 533 (1964), and its companion cases were decided. [Footnote 42] And see Maryland Committee for Fair Representation v. Tawes, 377 U. S. 656, 377 U. S. 673 (1964).Nor can we accept defendant's argument that 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. Bottorff, Page 403 U. S. 163 249 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. [Footnote 43] 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 | U.S. Supreme CourtWhitcomb v. Chavis, 403 U.S. 124 (1971)Whitcomb v. ChavisNo. 92Argued December 8, 1970Decided June 7, 1971403 U.S. 124SyllabusThis suit was brought by residents of Marion and Lake Counties, Indiana, challenging state statutes establishing Marion County as a multi-member district for the election of state senators and representatives. It was alleged, first, that the laws invidiously diluted the votes of Negroes and poor persons living in the "ghetto area" of Marion County, and, second, that voters in multi-member districts were overrepresented, since the true test of voting power is the ability to cast a tie-breaking vote, and the voters in multi-member districts had a greater theoretical opportunity to cast such votes than voters in single member districts. The tendency of multi-member district legislators to vote as a bloc was alleged to compound this discrimination. The three-judge court, though not ruling squarely on the second claim, determined that a racial minority group with specific legislative interests inhabited a ghetto area in Indianapolis, in Marion County; that the statutes operated to minimize and cancel out the voting strength of this minority group; and that redistricting Marion County alone would leave impermissible variations between Marion districts and others in the State, thus requiring state-wide redistricting, which could not await 1970 census figures. The court held the statutes unconstitutional, and gave the State until October 1, 1969, to enact reapportionment legislation. No such legislation ensued, and the court drafted a plan using single member districts throughout the State. The 1970 elections were ordered to be held in accordance with the new plan. This Court granted a stay of judgment pending final action on the appeal, thus permitting the 1970 elections to be held under the condemned statutes. Under those statutes, based on the 1960 census, there was a maximum variance in population of senate districts of 28.20%, with a ratio between the largest and smallest districts of 1.327 to 1, and a maximum variance in house districts of 24.78%, with a ratio of 1.279 to 1.Held: The judgment is reversed, and the case remanded. Pp. 403 U. S. 140-170; 403 U. S. 179-180.305 F. Supp. 1364, reversed and remanded. Page 403 U. S. 125MR. JUSTICE WHITE delivered the opinion of the Court with respect to Parts I-VI, finding that:1. Although, as the Court was advised on June 1, 1971, the Indiana legislature enacted new apportionment legislation providing for state-wide single member house and senate districts, the case is not moot. Pp. 403 U. S. 140-141.2. The validity of multi-member districts is justiciable, but a challenger has the burden of proving that such districts unconstitutionally operate to dilute or cancel the voting strength of racial or political groups. Pp. 403 U. S. 141-144.3. The actual, as distinguished from theoretical, impact of multi-member districts on individual voting power has not been sufficiently demonstrated on this record to warrant departure from prior cases involving multi-member districts, and neither the findings below nor the record sustains the view that multi-member districts overrepresent their voters as compared with voters in single-member districts, even if the multi-member legislative delegation tends to bloc voting. Pp. 403 U. S. 144-148.4. Appellees' claim that the fact that the number of ghetto residents who were legislators was not proportionate to ghetto population proves invidious discrimination, notwithstanding the absence of evidence that ghetto residents had less opportunity to participate in the political process, is not valid, and, on this record, the malproportion was due to the ghetto voters' choices' losing the election contests. Pp. 403 U. S. 148-155.5. The trial court's conclusion that, with respect to their unique interests, ghetto residents were invidiously underrepresented due to lack of their own legislative voice, was not supported by the findings. Moreover, even assuming bloc voting by the county delegation contrary to the ghetto majority's wishes, there is no constitutional violation, since that situation inheres in the political process, whether the district be single- or multi-member. P. 403 U. S. 155.6. Multi-member districts have not been proved inherently invidious or violative of equal protection, but, even assuming their unconstitutionality, it is not clear that the remedy is a single-member system with lines drawn to ensure representation to all sizable racial, ethnic, economic, or religious groups. Pp. 156-160.7. The District Court erred in brushing aside the entire state apportionment policy without solid constitutional and equitable Page 403 U. S. 126 grounds for doing so, and without considering more limited alternatives. Pp. 160-161.MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE BLACKMUN, concluded, in Part VII, that it was not improper for the District Court to order state-wide redistricting on the basis of the excessive population variances between the legislative districts shown by this record. That court ordered reapportionment not because of population shifts since its 1965 decision upholding the statutory plan, but because the disparities had been shown to be excessive by intervening decisions of this Court. Pp. 403 U. S. 161-163.MR. JUSTICE DOUGLAS, joined by MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL, concluded, with respect to redistricting the entire State, that there were impermissible population variances between districts under the current apportionment plan, and that the new Marion County districts would also have impermissible variances, thus requiring state-wide redistricting. Pp. 403 U. S. 179-180.WHITE, J., announced the Court's judgment and delivered an opinion, of the Court with respect to Parts I-VI, 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. 403 U. S. 163. HARLAN, J., filed a separate opinion, post, p. 403 U. S. 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. 403 U. S. 171. Page 403 U. S. 127 |
311 | 1983_83-630 | JUSTICE MARSHALL delivered the opinion of the Court.The question posed by this case is whether a statute of the State of Texas violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by denying aliens the opportunity to become notaries public. The Court of Appeals for the Fifth Circuit held that the statute Page 467 U. S. 218 does not offend the Equal Protection Clause. We granted certiorari, 464 U.S. 1007 (1983), and now reverse.IPetitioner, a native of Mexico, is a resident alien who has lived in the United States since 1961. He works as a paralegal for Texas Rural Legal Aid, Inc., helping migrant farmworkers on employment and civil rights matters. In order to administer oaths to these workers and to notarize their statements for use in civil litigation, petitioner applied in 1978 to become a notary public. [Footnote 1] Under Texas law, notaries public authenticate written instruments, administer oaths, and take out-of-court depositions. [Footnote 2] The Texas Secretary of State denied petitioner's application because he failed to satisfy the statutory requirement that a notary public be a citizen of the United States. Tex.Rev.Civ.Stat.Ann., Art. 5949(2) (Vernon Supp.1984) (hereafter Article 5949(2)). After an unsuccessful administrative appeal, petitioner brought suit in the Federal District Court, claiming that the citizenship requirement mandated by Article 5942(2) violated the Federal Constitution. [Footnote 3]The District Court ruled in favor of petitioner. Vargas v. Strake, C.A. No. B-79-147 (SD Tex., Oct. 9, 1981) (mem.). It reviewed the State's citizenship requirement under a Page 467 U. S. 219 strict scrutiny standard and concluded that the requirement violated the Equal Protection Clause. The District Court also suggested that, even under a rational relationship standard, the state statute would fail to pass constitutional muster because its citizenship requirement "is wholly unrelated to the achievement of any valid state interest." App. to Pet. for Cert. 11a. A divided panel of the Court of Appeals for the Fifth Circuit reversed, concluding that the proper standard for review was the rational relationship test, and that Article 5949(2) satisfied that test because it "bears a rational relationship to the state's interest in the proper and orderly handling of a countless variety of legal documents of importance to the state." Vargas v. Strake, 710 F.2d 190, 195 (1983). [Footnote 4]IIAs a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny. [Footnote 5] In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available. [Footnote 6] Applying this principle, Page 467 U. S. 220 we have invalidated an array of state statutes that denied aliens the right to pursue various occupations. In Sugarman v. Dougall, 413 U. S. 634 (1973), we struck down a state statute barring aliens from employment in permanent positions in the competitive class of the state civil service. In In re Griffiths, 413 U. S. 717 (1973), we nullified a state law excluding aliens from eligibility for membership in the State Bar. And in Examining Board v. Flores de Otero, 426 U. S. 572 (1976), we voided a state law that excluded aliens from the practice of civil engineering.We have, however, developed a narrow exception to the rule that discrimination based on alienage triggers strict scrutiny. This exception has been labeled the "political function" exception, and applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. The contours of the "political function" exception are outlined by our prior decisions. In Foley v. Connelie, 435 U. S. 291 (1978), we held that a State may require police to be citizens because, in performing a fundamental obligation of government, police "are clothed with authority to exercise an almost infinite variety of discretionary powers" often involving the most sensitive areas of daily life. Id. at 435 U. S. 297. In Ambach v. Norwick, 441 U. S. 68 (1979), we held that a State may bar aliens who have not declared their intent to become citizens from teaching in the public schools because teachers, like police, possess a high degree of responsibility and discretion in the fulfillment of a basic governmental obligation. They have direct, day-to-day contact with students, exercise unsupervised discretion over them, act as role models, and influence their students about the government and the political process. Id. at 441 U. S. 78-79. Finally, in Cabell v. Chavez-Salido, 454 U. S. 432 (1982), we held that a State may bar aliens from positions as probation officers because they, like police and teachers, routinely exercise discretionary power, involving a basic governmental function, that places them in a position of direct authority over other individuals. Page 467 U. S. 221The rationale behind the political function exception is that, within broad boundaries, a State may establish its own form of government and limit the right to govern to those who are full-fledged members of the political community. Some public positions are so closely bound up with the formulation and implementation of self-government that the State is permitted to exclude from those positions persons outside the political community, hence persons who have not become part of the process of democratic self-determination."The exclusion of aliens from basic governmental processes is not a deficiency in the democratic system, but a necessary consequence of the community's process of political self-definition. Self-government, whether direct or through representatives, begins by defining the scope of the community of the governed, and thus of the governors as well: aliens are, by definition, those outside of this community."Id. at 454 U. S. 439-440.We have therefore 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." Sugarman v. Dougall, supra, at 413 U. S. 647."While not retreating from the position that restrictions on lawfully resident aliens that primarily affect economic interests are subject to heightened judicial scrutiny . . . , we have concluded that strict scrutiny is out of place when the restriction primarily serves a political function. . . ."Cabell v. Chavez-Salido, supra, at 454 U. S. 439 (citation omitted).To determine whether a restriction based on alienage fits within the narrow political function exception, we devised in Cabell a two-part test."First, the specificity of the classification will be examined: a classification that is substantially overinclusive or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends. . . . Second, even if the classification is sufficiently Page 467 U. S. 222 tailored, it may be applied in the particular case only to 'persons holding state elective or important nonelective executive, legislative, and judicial positions,' those officers who 'participate directly in the formulation, execution, or review of broad public policy,' and hence 'perform functions that go to the heart of representative government.'"454 U.S. at 454 U. S. 440 (quoting Sugarman v. Dougall, supra, at 413 U. S. 647). [Footnote 7]IIIWe now turn to Article 5949(2) to determine whether it satisfies the Cabell test. The statute provides that, "[t]o be eligible for appointment as a Notary Public, a person shall be a resident citizen of the United States and of this state . . ." Unlike the statute invalidated in Sugarman, Article 5949(2) does not indiscriminately sweep within its ambit a wide range of offices and occupations, but specifies only one particular post with respect to which the State asserts a right to exclude aliens. Clearly, then, the statute is not overinclusive; it applies narrowly to only one category of persons: those wishing to obtain appointments as notaries. Less clear is whether Article 5949(2) is fatally underinclusive. Texas does not require court reporters to be United States citizens, even though they perform some of the same services as notaries. [Footnote 8] Nor does Texas require that its Secretary of State be a citizen, [Footnote 9] even though he holds the highest appointive position Page 467 U. S. 223 in the State and performs many important functions, including supervision of the licensing of all notaries public. [Footnote 10] We need not decide this issue, however, because of our decision with respect to the second prong of the Cabell test.In support of the proposition that notaries public fall within that category of officials who perform functions that "go to the heart of representative government," the State emphasizes that notaries are designated as public officers by the Texas Constitution. [Footnote 11] Texas maintains that this designation indicates that the State views notaries as important officials occupying posts central to the State's definition of itself as a political community. This Court, however, has never deemed the source of a position -- whether it derives from a State's statute or its Constitution -- as the dispositive factor in determining whether a State may entrust the position only to citizens. Rather, this Court has always looked to the actual function of the position as the dispositive factor. [Footnote 12] The Page 467 U. S. 224 focus of our inquiry has been whether a position was such that the officeholder would necessarily exercise broad discretionary power over the formulation or execution of public policies importantly affecting the citizen population -- power of the sort that a self-governing community could properly entrust only to full-fledged members of that community. As the Court noted in Cabell, in determining whether the function of a particular position brings the position within the narrow ambit of the exception,"the Court will look to the importance of the function as a factor giving substance to the concept of democratic self-government."454 U.S. at 454 U. S. 441, n. 7.The State maintains that, even if the actual function of a post is the touchstone of a proper analysis, Texas notaries public should still be classified among those positions from which aliens can properly be excluded because the duties of Texas notaries entail the performance of functions sufficiently consequential to be deemed "political." [Footnote 13] The Court of Appeals ably articulated this argument:"With the power to acknowledge instruments such as wills and deeds and leases and mortgages; to take out-of-court depositions; to administer oaths; and the discretion to refuse to perform any of the foregoing acts, notaries public in Texas are involved in countless matters of importance to the day-to-day functioning of state government. The Texas political community depends upon the notary public to insure that those persons executing documents are accurately identified, to refuse to certify any identification that is false or uncertain, and to insist that Page 467 U. S. 225 oaths are properly and accurately administered. Land titles and property succession depend upon the care and integrity of the notary public, as well as the familiarity of the notary with the community, to verify the authenticity of the execution of the documents."710 F.2d at 194.We recognize the critical need for a notary's duties to be carried out correctly and with integrity. But a notary's duties, important as they are, hardly implicate responsibilities that go to the heart of representative government. Rather, these duties are essentially clerical and ministerial. In contrast to state troopers, Foley v. Connelie, 435 U. S. 291 (1978), notaries do not routinely exercise the State's monopoly of legitimate coercive force. [Footnote 14] Nor do notaries routinely exercise the wide discretion typically enjoyed by public school teachers when they present materials that educate youth respecting the information and values necessary for the maintenance of a democratic political system. See Ambach v. Norwick, 441 U.S. at 441 U. S. 77. To be sure, considerable damage could result from the negligent or dishonest performance of a notary's duties. But the same could be said for the duties Page 467 U. S. 226 performed by cashiers, building inspectors, the janitors who clean up the offices of public officials, and numerous other categories of personnel upon whom we depend for careful, honest service. What distinguishes such personnel from those to whom the political function exception is properly applied is that the latter are invested either with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals. Neither of these characteristics pertains to the function performed by Texas notaries.The inappropriateness of applying the political function exception to Texas notaries is further underlined by our decision in In re Griffiths, 413 U. S. 634 (1973), in which we subjected to strict scrutiny a Connecticut statute that prohibited noncitizens from becoming members of the State Bar. Along with the usual powers and privileges accorded to members of the bar, Connecticut gave to members of its Bar additional authority that encompasses the very duties performed by Texas notaries -- authority to "sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgements of deeds.'" Id. at 413 U. S. 723 (quoting Connecticut statute). [Footnote 15] In striking down Connecticut's citizenship requirement, we concluded that"[i]t in no way denigrates a lawyer's high responsibilities to observe that [these duties] hardly involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens."Id. at 413 U. S. 724. If it is improper to apply the political function exception to a citizenship requirement governing eligibility for membership in a state bar, it would be anomalous to apply the exception to the citizenship requirement that governs eligibility to become a Texas notary. We conclude, then, that Page 467 U. S. 227 the "political function" exception is inapplicable to Article 5949(2), and that the statute is therefore subject to strict judicial scrutiny.IVTo satisfy strict scrutiny, the State must show that Article 5949(2) furthers a compelling state interest by the least restrictive means practically available. Respondents maintain that Article 5949(2) serves its "legitimate concern that notaries be reasonably familiar with state law and institutions," and "that notaries may be called upon years later to testify to acts they have performed." Brief for Respondents 24-25. However, both of these asserted justifications utterly fail to meet the stringent requirements of strict scrutiny. There is nothing in the record that indicates that resident aliens, as a class, are so incapable of familiarizing themselves with Texas law as to justify the State's absolute and class-wide exclusion. The possibility that some resident aliens are unsuitable for the position cannot justify a wholesale ban against all resident aliens. Furthermore, if the State's concern with ensuring a notary's familiarity with state law were truly "compelling," one would expect the State to give some sort of test actually measuring a person's familiarity with the law. The State, however, administers no such test. To become a notary public in Texas, one is merely required to fill out an application that lists one's name and address and that answers four questions pertaining to one's age, citizenship, residency, and criminal record [Footnote 16] -- nothing that reflects the State's asserted interest in ensuring that notaries are familiar with Texas law. Similarly inadequate is the State's purported interest in ensuring the later availability of notaries' testimony. This justification fails because the State fails to advance a factual showing that the unavailability of notaries' testimony presents a real, as opposed to a merely speculative, Page 467 U. S. 228 problem to the State. Without a factual underpinning, the State's asserted interest lacks the weight we have required of interests properly denominated as compelling. [Footnote 17]VWe conclude that Article 5949(2) violates the Fourteenth Amendment of the United States Constitution. Accordingly 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 | U.S. Supreme CourtBernal v. Fainter, 467 U.S. 216 (1984)Bernal v. FainterNo. 83-630Argued March 28, 1984Decided May 30, 1984467 U.S. 216SyllabusPetitioner, a resident alien, applied to the Texas Secretary of State to become a notary public, who under Texas law authenticates written instruments, administers oaths, and takes out-of-court depositions. Petitioner's application was denied because he failed to satisfy the requirement of a Texas statute (Article 5949(2)) that a notary public be a United States citizen. After an unsuccessful administrative appeal, petitioner (and another individual) brought suit in Federal District Court, claiming that Article 5949(2) violated the Federal Constitution. The District Court ruled in petitioner's favor, concluding that the citizenship requirement, reviewed under a strict scrutiny standard, violated the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals reversed, holding that the proper standard for review was the rational relationship test, and that Article 5949(2) satisfied that test.Held: Article 5949(2) violates the Equal Protection Clause. Pp. 467 U. S. 219-228.(a) As a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny. In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available. The "political function" exception to the strict scrutiny rule applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. Under this exception, the standard of review is lowered 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. Sugarman v. Dougall, 413 U. S. 634; Cabell v. Chavez-Salido, 454 U. S. 432. Pp. 467 U. S. 219-222.(b) The "political function" exception is inapplicable to Article 5949(2). Notaries public do not fall within the category of officials who perform functions that go to the heart of representative government merely because they are designated as public officers by the Texas Constitution. The dispositive factor is the actual function of a position, not its source. The focus of the inquiry is whether the position is such that the officeholder will necessarily exercise broad discretionary power over the formulation or execution of public policies importantly affecting the citizen population. Although there is a critical need for a notary's duties to be Page 467 U. S. 217 carried out correctly and with integrity, those duties are essentially clerical and ministerial. Texas notaries are not invested with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals. Cf. In re Griffiths, 413 U. S. 717. Pp. 467 U. S. 222-227.(c) Article 5949(2) does not meet the applicable strict scrutiny standard of judicial review. To satisfy such standard, the State must show that the statute furthers a compelling state interest by the least restrictive means practically available. With regard to the State's asserted interest in ensuring that notaries are familiar with Texas law, there is nothing in the record indicating that resident aliens, as a class, are so incapable of familiarizing themselves with Texas law as to justify the State's absolute and class-wide exclusion. Furthermore, if the State's concern were truly "compelling," one would expect the State to give some sort of test actually measuring a person's familiarity with the law. The State, however, administers no such test. Similarly inadequate is the State's purported interest in ensuring the availability of notaries' testimony years after their acts. The State failed to advance a factual showing that the unavailability of notaries' testimony presents a real, as opposed to a merely speculative, problem to the State. Pp. 467 U. S. 227-228.710 F.2d 190, reversed and remanded.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. REHNQUIST, J., filed a dissenting opinion, post, p. 467 U. S. 228. |
312 | 1962_86 | MR. JUSTICE STEWART delivered the opinion of the Court.The petitioners, 187 in number, were convicted in a magistrate's court in Columbia, South Carolina, of the Page 372 U. S. 230 common law crime of breach of the peace. Their convictions were ultimately affirmed by the South Carolina Supreme Court, 239 S.C. 339, 123 S.E.2d 247. We granted certiorari, 369 U. S. 870, to consider the claim that these convictions cannot be squared with the Fourteenth Amendment of the United States Constitution.There was no substantial conflict in the trial evidence. [Footnote 1] Late in the morning of March 2, 1961, the petitioners, high school and college students of the Negro race, met at the Zion Baptist Church in Columbia. From there, at about noon, they walked in separate groups of about 15 to the South Carolina State House grounds, an area of two city blocks open to the general public. Their purpose was"to submit a protest to the citizens of South Carolina, along with the Legislative Bodies of South Carolina, our feelings and our dissatisfaction with the present condition of discriminatory actions against Negroes in general, and to let them know that we were dissatisfied, and that we would like for the laws which prohibited Negro privileges in this State to be removed."Already on the State House grounds when the petitioners arrived were 30 or more law enforcement officers, who had advance knowledge that the petitioners were coming. [Footnote 2] Each group of petitioners entered the grounds through a driveway and parking area known in the record as the "horseshoe." As they entered, they were told by the law enforcement officials that "they had a right, as a citizen, to go through the State House grounds, as any other citizen has, as long as they were peaceful." During Page 372 U. S. 231 the next half hour or 45 minutes, the petitioners, in the same small groups, walked single file or two abreast in an orderly way, [Footnote 3] through the grounds, each group carrying placards bearing such messages as "I am proud to be a Negro" and "Down with segregation."During this time, a crowd of some 200 to 300 onlookers had collected in the horseshoe area and on the adjacent sidewalks. There was no evidence to suggest that these onlookers were anything but curious, and no evidence at all of any threatening remarks, hostile gestures, or offensive language on the part of any member of the crowd. The City Manager testified that he recognized some of the onlookers, whom he did not identify, as "possible troublemakers," but his subsequent testimony made clear that nobody among the crowd actually caused or threatened any trouble. [Footnote 4] There was no obstruction of pedestrian Page 372 U. S. 232 or vehicular traffic within the State House grounds. [Footnote 5] No vehicle was prevented from entering or leaving the horseshoe area. Although vehicular traffic at a nearby street intersection was slowed down somewhat, an officer was dispatched to keep traffic moving. There were a number of bystanders on the public sidewalks adjacent to the State House grounds, but they all moved on when asked to do so, and there was no impediment of pedestrian traffic. [Footnote 6] Police protection at the scene was at all Page 372 U. S. 233 times sufficient to meet any foreseeable possibility of disorder. [Footnote 7]In the situation and under the circumstances thus described, the police authorities advised the petitioners that they would be arrested if they did not disperse within 15 minutes. [Footnote 8] Instead of dispersing, the petitioners engaged in what the City Manager described as "boisterous," "loud," and "flamboyant" conduct, which, as his later testimony made clear, consisted of listening to a "religious harangue" by one of their leaders, and loudly singing "The Star Spangled Banner" and other patriotic and religious songs, while stamping their feet and clapping their hands. After 15 minutes had passed, the police arrested the petitioners and marched them off to jail. [Footnote 9] Page 372 U. S. 234Upon this evidence, the state trial court convicted the petitioners of breach of the peace, and imposed sentences ranging from a $10 fine or five days in jail to a $100 fine or 30 days in jail. In affirming the judgments, the Supreme Court of South Carolina said that, under the law of that State, the offense of breach of the peace "is not susceptible of exact definition," but that the "general definition of the offense" is as follows:"In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence . . . , it includes any violation of any law enacted to preserve peace and good order. It may consist of an act of violence or an act likely to produce violence. It is not necessary that the peace be actually broken to lay the foundation for a prosecution for this offense. If what is done is unjustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Nor is actual personal violence an essential element in the offense. . . .""By 'peace,' as used in the law in this connection, is meant the tranquility enjoyed by citizens of a municipality or community where good order reigns among its members, which is the natural right of all persons in political society."239 S.C. at 343-344, 123 S.E.2d at 249.The petitioners contend that there was a complete absence of any evidence of the commission of this offense, and that they were thus denied one of the most basic elements Page 372 U. S. 235 of due process of law. Thompson v. Louisville, 362 U. S. 199; see Garner v. Louisiana, 368 U. S. 157; Taylor v. Louisiana, 370 U. S. 154. Whatever the merits of this contention, we need not pass upon it in the present case. The state courts have held that the petitioners' conduct constituted breach of the peace under state law, and we may accept their decision as binding upon us to that extent. But it nevertheless remains our duty in a case such as this to make an independent examination of the whole record. Blackburn v. Alabama, 361 U. S. 199, 361 U. S. 205, n. 5; Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 335; Fiske v. Kansas, 274 U. S. 380, 274 U. S. 385-386. And it is clear to us that, in arresting, convicting, and punishing the petitioners under the circumstances disclosed by this record, South Carolina infringed the petitioners' constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.It has long been established that these First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States. Gitlow v. New York, 268 U. S. 652; Whitney v. California, 274 U. S. 357; Stromberg v. California, 283 U. S. 359; De Jonge v. Oregon, 299 U. S. 353; Cantwell v. Connecticut, 310 U. S. 296. The circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form. The petitioners felt aggrieved by laws of South Carolina which allegedly "prohibited Negro privileges in this State." They peaceably assembled at the site of the State Government, [Footnote 10] and there peaceably expressed their grievances "to the citizens of South Carolina, along with the Legislative Bodies of South Carolina." Page 372 U. S. 236 Not until they were told by police officials that they must disperse on pain of arrest did they do more. Even then, they but sang patriotic and religious songs after one of their leaders had delivered a "religious harangue." There was no violence or threat of violence on their part, or on the part of any member of the crowd watching them. Police protection was "ample."This, therefore, was a far cry from the situation in Feiner v. New York, 340 U. S. 315, where two policemen were faced with a crowd which was "pushing, shoving and milling around," id. at 340 U. S. 317, where at least one member of the crowd "threatened violence if the police did not act," id. at 340 U. S. 317, where "the crowd was pressing closer around petitioner and the officer," id. at 340 U. S. 318, and where "the speaker passes the bounds of argument or persuasion and undertakes incitement to riot." Id. at 340 U. S. 321. And the record is barren of any evidence of "fighting words." See Chaplinsky v. New Hampshire, 315 U. S. 568.We do not review in this case criminal convictions resulting from the evenhanded application of a precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be limited or proscribed. If, for example, the petitioners had been convicted upon evidence that they had violated a law regulating traffic, or had disobeyed a law reasonably limiting the periods during which the State House grounds were open to the public, this would be a different case. [Footnote 11] Page 372 U. S. 237 See Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 307-308; Garner v. Louisiana, 368 U. S. 157, 368 U. S. 202 (concurring opinion). These petitioners were convicted of an offense so generalized as to be, in the words of the South Carolina Supreme Court, "not susceptible of exact definition." And they were convicted upon evidence which showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection.The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views."[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions, and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech . . . is . . . protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. . . . There is no room under our Constitution for a more restrictive Page 372 U. S. 238 view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups."Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 5. As in the Terminiello case, the courts of South Carolina have defined a criminal offense so as to permit conviction of the petitioners if their speech"stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand."Id. at 337 U. S. 5.As Chief Justice Hughes wrote in Stromberg v. California,"The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which, upon its face and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment. . . ."283 U.S. 359, 283 U. S. 369.For these reasons, we conclude that these criminal convictions cannot stand.Reversed | U.S. Supreme CourtEdwards v. South Carolina, 372 U.S. 229 (1963)Edwards v. South CarolinaNo. 86Argued December 13, 1962Decided February 25, 1963372 U.S. 229SyllabusFeeling aggrieved by laws of South Carolina which allegedly "prohibited Negro privileges," petitioners, 187 Negro high school and college students, peacefully assembled at the site of the State Government and there peacefully expressed their grievances "to the citizens of South Carolina, along with the Legislative Bodies of South Carolina." When told by police officials that they must disperse within 15 minutes on pain of arrest, they failed to do so, and sang patriotic and religious songs after one of their leaders had delivered a "religious harangue." There was no violence or threat of violence on their part or on the part of any member of the crowd watching them, but petitioners were arrested and convicted of the common law crime of breach of the peace, which the State Supreme Court said "is not susceptible of exact definition."Held: In arresting, convicting and punishing petitioners under the circumstances disclosed by this record, South Carolina infringed their rights of free speech, free assembly and freedom to petition for a redress of grievances -- rights guaranteed by the First Amendment and protected by the Fourteenth Amendment from invasion by the States. Pp. 229-238.239 S.C. 339, 123 S.E.2d 247, reversed. |
313 | 1988_87-1167 | JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join.Ann Hopkins was a senior manager in an office of Price Waterhouse when she was proposed for partnership in 1982. She was neither offered nor denied admission to the partnership; instead, her candidacy was held for reconsideration the following year. When the partners in her office later refused Page 490 U. S. 232 to repropose her for partnership, she sued Price Waterhouse under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., charging that the firm had discriminated against her on the basis of sex in its decisions regarding partnership. Judge Gesell in the Federal District Court for the District of Columbia ruled in her favor on the question of liability, 618 F. Supp. 1109 (1985), and the Court of Appeals for the District of Columbia Circuit affirmed. 263 U.S.App.D.C. 321, 825 F.2d 458 (1987). We granted certiorari to resolve a conflict among the Courts of Appeals concerning the respective burdens of proof of a defendant and plaintiff in a suit under Title VII when it has been shown that an employment decision resulted from a mixture of legitimate and illegitimate motives. 485 U.S. 933 (1988).IAt Price Waterhouse, a nationwide professional accounting partnership, a senior manager becomes a candidate for partnership when the partners in her local office submit her name as a candidate. All of the other partners in the firm are then invited to submit written comments on each candidate -- either on a "long" or a "short" form, depending on the partner's degree of exposure to the candidate. Not every partner in the firm submits comments on every candidate. After reviewing the comments and interviewing the partners who submitted them, the firm's Admissions Committee makes a recommendation to the Policy Board. This recommendation will be either that the firm accept the candidate for partnership, put her application on "hold," or deny her the promotion outright. The Policy Board then decides whether to submit the candidate's name to the entire partnership for a vote, to "hold" her candidacy, or to reject her. The recommendation of the Admissions Committee, and the decision of the Policy Board, are not controlled by fixed guidelines: a certain number of positive comments from partners will not guarantee a candidate's admission to the partnership, nor will a specific Page 490 U. S. 233 quantity of negative comments necessarily defeat her application. Price Waterhouse places no limit on the number of persons whom it will admit to the partnership in any given year.Ann Hopkins had worked at Price Waterhouse's Office of Government Services in Washington, D.C., for five years when the partners in that office proposed her as a candidate for partnership. Of the 662 partners at the firm at that time, 7 were women. Of the 88 persons proposed for partnership that year, only 1 -- Hopkins -- was a woman. Forty-seven of these candidates were admitted to the partnership, 21 were rejected, and 20 -- including Hopkins -- were "held" for reconsideration the following year. [Footnote 1] Thirteen of the 32 partners who had submitted comments on Hopkins supported her bid for partnership. Three partners recommended that her candidacy be placed on hold, eight stated that they did not have an informed opinion about her, and eight recommended that she be denied partnership.In a jointly prepared statement supporting her candidacy, the partners in Hopkins' office showcased her successful 2-year effort to secure a $25 million contract with the Department of State, labeling it "an outstanding performance" and one that Hopkins carried out "virtually at the partner level." Plaintiff's Exh. 15. Despite Price Waterhouse's attempt at trial to minimize her contribution to this project, Judge Gesell Page 490 U. S. 234 specifically found that Hopkins had "played a key role in Price Waterhouse's successful effort to win a multimillion-dollar contract with the Department of State." 618 F. Supp. at 1112. Indeed, he went on,"[n]one of the other partnership candidates at Price Waterhouse that year had a comparable record in terms of successfully securing major contracts for the partnership."Ibid.The partners in Hopkins' office praised her character as well as her accomplishments, describing her in their joint statement as "an outstanding professional" who had a "deft touch," a "strong character, independence and integrity." Plaintiff's Exh. 15. Clients appear to have agreed with these assessments. At trial, one official from the State Department described her as "extremely competent, intelligent," "strong and forthright, very productive, energetic and creative." Tr. 150. Another high-ranking official praised Hopkins' decisiveness, broadmindedness, and "intellectual clarity"; she was, in his words, "a stimulating conversationalist." Id. at 156-157. Evaluations such as these led Judge Gesell to conclude that Hopkins "had no difficulty dealing with clients and her clients appear to have been very pleased with her work" and that she"was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines and demanded much from the multidisciplinary staffs with which she worked."618 F. Supp. at 1112-1113.On too many occasions, however, Hopkins' aggressiveness apparently spilled over into abrasiveness. Staff members seem to have borne the brunt of Hopkins' brusqueness. Long before her bid for partnership, partners evaluating her work had counseled her to improve her relations with staff members. Although later evaluations indicate an improvement, Hopkins' perceived shortcomings in this important area eventually doomed her bid for partnership. Virtually all of the partners' negative remarks about Hopkins -- even those of partners supporting her -- had to do with her "interpersonal Page 490 U. S. 235 skills." Both "[s]upporters and opponents of her candidacy," stressed Judge Gesell, "indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with, and impatient with staff." Id. at 1113.There were clear signs, though, that some of the partners reacted negatively to Hopkins' personality because she was a woman. One partner described her as "macho" (Defendant's Exh. 30); another suggested that she "overcompensated for being a woman" (Defendant's Exh. 31); a third advised her to take "a course at charm school" (Defendant's Exh. 27). Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only "because it's a lady using foul language." Tr. 321. Another supporter explained that Hopkins"ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate."Defendant's Exh. 27. But it was the man who, as Judge Gesell found, bore responsibility for explaining to Hopkins the reasons for the Policy Board's decision to place her candidacy on hold who delivered the coup de grace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." 618 F. Supp. at 1117.Dr. Susan Fiske, a social psychologist and Associate Professor of Psychology at Carnegie-Mellon University, testified at trial that the partnership selection process at Price Waterhouse was likely influenced by sex stereotyping. Her testimony focused not only on the overtly sex-based comments of partners but also on gender-neutral remarks, made by partners who knew Hopkins only slightly, that were intensely critical of her. One partner, for example, baldly stated that Hopkins was "universally disliked" by staff (Defendant's Exh. 27), and another described her as "consistently annoying and irritating" (ibid.); yet these were people who had had very little contact with Hopkins. According to Page 490 U. S. 236 Fiske, Hopkins' uniqueness (as the only woman in the pool of candidates) and the subjectivity of the evaluations made it likely that sharply critical remarks such as these were the product of sex stereotyping -- although Fiske admitted that she could not say with certainty whether any particular comment was the result of stereotyping. Fiske based her opinion on a review of the submitted comments, explaining that it was commonly accepted practice for social psychologists to reach this kind of conclusion without having met any of the people involved in the decisionmaking process.In previous years, other female candidates for partnership also had been evaluated in sex-based terms. As a general matter, Judge Gesell concluded, "[c]andidates were viewed favorably if partners believed they maintained their femin[in]ity while becoming effective professional managers"; in this environment, "[t]o be identified as a women's lib[b]er' was regarded as [a] negative comment." 618 F. Supp. at 1117. In fact, the judge found that, in previous years,"[o]ne partner repeatedly commented that he could not consider any woman seriously as a partnership candidate, and believed that women were not even capable of functioning as senior managers -- yet the firm took no action to discourage his comments, and recorded his vote in the overall summary of the evaluations."Ibid.Judge Gesell found that Price Waterhouse legitimately emphasized interpersonal skills in its partnership decisions, and also found that the firm had not fabricated its complaints about Hopkins' interpersonal skills as a pretext for discrimination. Moreover, he concluded, the firm did not give decisive emphasis to such traits only because Hopkins was a woman; although there were male candidates who lacked these skills but who were admitted to partnership, the judge found that these candidates possessed other, positive traits that Hopkins lacked.The judge went on to decide, however, that some of the partners' remarks about Hopkins stemmed from an impermissibly Page 490 U. S. 237 cabined view of the proper behavior of women, and that Price Waterhouse had done nothing to disavow reliance on such comments. He held that Price Waterhouse had unlawfully discriminated against Hopkins on the basis of sex by consciously giving credence and effect to partners' comments that resulted from sex stereotyping. Noting that Price Waterhouse could avoid equitable relief by proving by clear and convincing evidence that it would have placed Hopkins' candidacy on hold even absent this discrimination, the judge decided that the firm had not carried this heavy burden.The Court of Appeals affirmed the District Court's ultimate conclusion, but departed from its analysis in one particular: it held that, even if a plaintiff proves that discrimination played a role in an employment decision, the defendant will not be found liable if it proves, by clear and convincing evidence, that it would have made the same decision in the absence of discrimination. 263 U.S.App.D.C. at 333-334, 825 F.2d at 470-471. Under this approach, an employer is not deemed to have violated Title VII if it proves that it would have made the same decision in the absence of an impermissible motive, whereas, under the District Court's approach, the employer's proof in that respect only avoids equitable relief. We decide today that the Court of Appeals had the better approach, but that both courts erred in requiring the employer to make its proof by clear and convincing evidence.IIThe specification of the standard of causation under Title VII is a decision about the kind of conduct that violates that statute. According to Price Waterhouse, an employer violates Title VII only if it gives decisive consideration to an employee's gender, race, national origin, or religion in making a decision that affects that employee. On Price Waterhouse's theory, even if a plaintiff shows that her gender played a part in an employment decision, it is still her burden to show that the decision would have been different if the employer had Page 490 U. S. 238 not discriminated. In Hopkins' view, on the other hand, an employer violates the statute whenever it allows one of these attributes to play any part in an employment decision. Once a plaintiff shows that this occurred, according to Hopkins, the employer's proof that it would have made the same decision in the absence of discrimination can serve to limit equitable relief, but not to avoid a finding of liability. [Footnote 2] We conclude that, as often happens, the truth lies somewhere in-between. Page 490 U. S. 239AIn passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees. [Footnote 3] Yet the statute does not purport to limit the other qualities and characteristics that employers may take into account in making employment decisions. The converse, therefore, of "for cause" legislation, [Footnote 4] Title VII eliminates certain bases for distinguishing among employees while otherwise preserving employers' freedom of choice. This balance between employee rights and employer prerogatives turns out to be decisive in the case before us.Congress' intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute. In now-familiar language, the statute forbids Page 490 U. S. 240 an employer to"fail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment,"or to"limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's . . . sex."42 U.S.C. §§ 2000e-2(a)(1), (2) (emphasis added). [Footnote 5] We take these words to mean that gender must be irrelevant to employment decisions. To construe the words "because of" as colloquial shorthand for "but-for causation," as does Price Waterhouse, is to misunderstand them. [Footnote 6]But-for causation is a hypothetical construct. In determining whether a particular factor was a but-for cause of a given event, we begin by assuming that that factor was present at the time of the event, and then ask whether, even if that factor had been absent, the event nevertheless would have transpired in the same way. The present, active tense of the operative verbs of § 703(a)(1) ("to fail or refuse"), in contrast, turns our attention to the actual moment of the Page 490 U. S. 241 event in question, the adverse employment decision. The critical inquiry, the one commanded by the words of § 703(a)(1), is whether gender was a factor in the employment decision at the moment it was made. Moreover, since we know that the words "because of" do not mean "solely because of," [Footnote 7] we also know that Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations. When, therefore, an employer considers both gender and legitimate factors at the time of making a decision, that decision was "because of " sex and the other, legitimate considerations -- even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account.To attribute this meaning to the words "because of" does not, as the dissent asserts, post at 490 U. S. 282, divest them of causal significance. A simple example illustrates the point. Suppose two physical forces act upon and move an object, and suppose that either force acting alone would have moved the object. As the dissent would have it, neither physical force was a "cause" of the motion unless we can show that, but for one or both of them, the object would not have moved; apparently both forces were simply "in the air" unless we can identify at least one of them as a but-for cause of the object's movement. Post at 490 U. S. 282. Events that are causally overdetermined, in other words, may not have any "cause" at all. This cannot be so.We need not leave our common sense at the doorstep when we interpret a statute. It is difficult for us to imagine that, in the simple words "because of," Congress meant Page 490 U. S. 242 to obligate a plaintiff to identify the precise causal role played by legitimate and illegitimate motivations in the employment decision she challenges. We conclude, instead, that Congress meant to obligate her to prove that the employer relied upon sex-based considerations in coming to its decision.Our interpretation of the words "because of" also is supported by the fact that Title VII does identify one circumstance in which an employer may take gender into account in making an employment decision, namely, when gender is a"bona fide occupational qualification [(BFOQ)] reasonably necessary to the normal operation of th[e] particular business or enterprise."42 U.S.C. § 2000e-2(e). The only plausible inference to draw from this provision is that, in all other circumstances, a person's gender may not be considered in making decisions that affect her. Indeed, Title VII even forbids employers to make gender an indirect stumbling block to employment opportunities. An employer may not, we have held, condition employment opportunities on the satisfaction of facially neutral tests or qualifications that have a disproportionate, adverse impact on members of protected groups when those tests or qualifications are not required for performance of the job. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988); Griggs v. Duke Power Co., 401 U. S. 424 (1971).To say that an employer may not take gender into account is not, however, the end of the matter, for that describes only one aspect of Title VII. The other important aspect of the statute is its preservation of an employer's remaining freedom of choice. We conclude that the preservation of this freedom means that an employer shall not be liable if it can prove that, even if it had not taken gender into account, it would have come to the same decision regarding a particular person. The statute's maintenance of employer prerogatives is evident from the statute itself and from its history, both in Congress and in this Court.To begin with, the existence of the BFOQ exception shows Congress' unwillingness to require employers to change the very nature of their operations in response to the statute. And our emphasis on "business necessity" in disparate Page 490 U. S. 243 impact cases, see Watson and Griggs, and on "legitimate, nondiscriminatory reason[s]" in disparate treatment cases, see McDonnell Douglas Corp. v. Green, 411 U. S. 792, 411 U. S. 802 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), results from our awareness of Title VII's balance between employee rights and employer prerogatives. In McDonnell Douglas, we described as follows Title VII's goal to eradicate discrimination while preserving workplace efficiency:"The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise."411 U.S. at 411 U. S. 801.When an employer ignored the attributes enumerated in the statute, Congress hoped, it naturally would focus on the qualifications of the applicant or employee. The intent to drive employers to focus on qualifications rather, than on race, religion, sex, or national origin is the theme of a good deal of the statute's legislative history. An interpretive memorandum entered into the Congressional Record by Senators Case and Clark, comanagers of the bill in the Senate, is representative of this general theme. [Footnote 8] According to their memorandum, Title VII"expressly protects the employer's right to insist that any prospective applicant, Negro or white, must meet the applicable job qualifications. Indeed, the very purpose of title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color. [Footnote 9]"110 Cong.Rec. 7247 (1964), quoted in Griggs v. Page 490 U. S. 244 Duke Power Co., supra, at 401 U. S. 434. The memorandum went on:"To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited by section 704 are those which are based on any five of the forbidden criteria: race, color, religion, sex, and national origin. Any other criterion or qualification for employment is not affected by this title."110 Cong.Rec. 7213 (1964).Many other legislators made statements to a similar effect; we see no need to set out each remark in full here. The central point is this: while an employer may not take gender into account in making an employment decision (except in those very narrow circumstances in which gender is a BFOQ), it is free to decide against a woman for other reasons. We think these principles require that, once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability [Footnote 10] only by proving that it would have made the same Page 490 U. S. 245 decision even if it had not allowed gender to play such a role. This balance of burdens is the direct result of Title VII's balance of rights.Our holding casts no shadow on Burdine, in which we decided that, even after a plaintiff has made out a prima facie case of discrimination under Title VII, the burden of persuasion does not shift to the employer to show that its stated legitimate reason for the employment decision was the true reason. 450 U.S. at 450 U. S. 256-258. We stress, first, that neither Page 490 U. S. 246 court below shifted the burden of persuasion to Price Waterhouse on this question, and, in fact, the District Court found that Hopkins had not shown that the firm's stated reason for its decision was pretextual. 618 F. Supp. at 1114-1115. Moreover, since we hold that the plaintiff retains the burden of persuasion on the issue whether gender played a part in the employment decision, the situation before us is not the one of "shifting burdens" that we addressed in Burdine. Instead, the employer's burden is most appropriately deemed an affirmative defense: the plaintiff must persuade the factfinder on one point, and then the employer, if it wishes to prevail, must persuade it on another. See NLRB v. Transportation Management Corp., 462 U. S. 393, 462 U. S. 400 (1983). [Footnote 11]Price Waterhouse's claim that the employer does not bear any burden of proof (if it bears one at all) until the plaintiff has shown "substantial evidence that Price Waterhouse's explanation for failing to promote Hopkins was not the true reason' for its action" (Brief for Petitioner 20) merely restates its argument that the plaintiff in a mixed-motives case Page 490 U. S. 247 must squeeze her proof into Burdine's framework. Where a decision was the product of a mixture of legitimate and illegitimate motives, however, it simply makes no sense to ask whether the legitimate reason was "the `true reason'" (Brief for Petitioner 20 (emphasis added)) for the decision -- which is the question asked by Burdine. See Transportation Management, supra, at 462 U. S. 400, n. 5. [Footnote 12] Oblivious to this last point, the dissent would insist that Burdine's framework perform work that it was never intended to perform. It would require a plaintiff who challenges an adverse employment decision in which both legitimate and illegitimate considerations played a part to pretend that the decision, in fact, stemmed from a single source -- for the premise of Burdine is that either a legitimate or an illegitimate set of considerations led to the challenged decision. To say that Burdine's evidentiary scheme will not help us decide a case admittedly involving both kinds of considerations is not to cast aspersions on the utility of that scheme in the circumstances for which it was designed. Page 490 U. S. 248BIn deciding as we do today, we do not traverse new ground. We have in the past confronted Title VII cases in which an employer has used an illegitimate criterion to distinguish among employees, and have held that it is the employer's burden to justify decisions resulting from that practice. When an employer has asserted that gender is a BFOQ within the meaning of § 703(e), for example, we have assumed that it is the employer who must show why it must use gender as a criterion in employment. See Dothard v. Rawlinson, 433 U. S. 321, 433 U. S. 332-337 (1977). In a related context, although the Equal Pay Act expressly permits employers to pay different wages to women where disparate pay is the result of a "factor other than sex," see 29 U.S.C. § 206(d)(1), we have decided that it is the employer, not the employee, who must prove that the actual disparity is not sex-linked. See Corning Glass Works v. Brennan, 417 U. S. 188, 417 U. S. 196 (1974). Finally, some courts have held that, under Title VII as amended by the Pregnancy Discrimination Act, it is the employer who has the burden of showing that its limitations on the work that it allows a pregnant woman to perform are necessary in light of her pregnancy. See, e.g., Hayes v. Shelby Memorial Hospital, 726 F.2d 1543, 1548 (CA11 1984); Wright v. Olin Corp., 697 F.2d 1172, 1187 (CA4 1982). As these examples demonstrate, our assumption always has been that, if an employer allows gender to affect its decisionmaking process, then it must carry the burden of justifying its ultimate decision. We have not in the past required women whose gender has proved relevant to an employment decision to establish the negative proposition that they would not have been subject to that decision had they been men, and we do not do so today.We have reached a similar conclusion in other contexts where the law announces that a certain characteristic is irrelevant to the allocation of burdens and benefits. In Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), the Page 490 U. S. 249 plaintiff claimed that he had been discharged as a public school teacher for exercising his free-speech rights under the First Amendment. Because we did not wish to"place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing,"id. at 429 U. S. 285, we concluded that such an employee"ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record."Id. at 429 U. S. 286. We therefore held that, once the plaintiff had shown that his constitutionally protected speech was a "substantial" or "motivating factor" in the adverse treatment of him by his employer, the employer was obligated to prove"by a preponderance of the evidence that it would have reached the same decision as to [the plaintiff] even in the absence of the protected conduct."Id. at 429 U. S. 287. A court that finds for a plaintiff under this standard has effectively concluded that an illegitimate motive was a "but-for" cause of the employment decision. See Givhan v. Western Line Consolidated School Dist., 439 U. S. 410, 439 U. S. 417 (1979). See also Arlington Heights v. Metropolitan Housing Corp., 429 U. S. 252, 429 U. S. 270-271, n. 21 (1977) (applying Mt. Healthy standard where plaintiff alleged that unconstitutional motive had contributed to enactment of legislation); Hunter v. Underwood, 471 U. S. 222, 471 U. S. 228 (1985) (same).In Transportation Management, we upheld the NLRB's interpretation of § 10(c) of the National Labor Relations Act, which forbids a court to order affirmative relief for discriminatory conduct against a union member "if such individual was suspended or discharged for cause." 29 U.S.C. § 160(c). The Board had decided that this provision meant that, once an employee had shown that his suspension or discharge was based in part on hostility to unions, it was up to the employer to prove by a preponderance of the evidence that it would have made the same decision in the absence of this impermissible motive. In such a situation, we emphasized, Page 490 U. S. 250"[t]he employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity, but by his own wrongdoing."462 U.S. at 462 U. S. 403.We have, in short, been here before. Each time, we have concluded that the plaintiff who shows that an impermissible motive played a motivating part in an adverse employment decision has thereby placed upon the defendant the burden to show that it would have made the same decision in the absence of the unlawful motive. Our decision today treads this well worn path.CIn saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. [Footnote 13] In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.Although the parties do not overtly dispute this last proposition, the placement by Price Waterhouse of "sex stereotyping" in quotation marks throughout its brief seems to us an insinuation either that such stereotyping was not present in this case or that it lacks legal relevance. We reject both possibilities. Page 490 U. S. 251 As to the existence of sex stereotyping in this case, we are not inclined to quarrel with the District Court's conclusion that a number of the partners' comments showed sex stereotyping at work. See infra at 490 U. S. 255-256. As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for,"'[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'"Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 435 U. S. 707, n. 13 (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971). An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision. In making this showing, stereotyped remarks can certainly be evidence that gender played a part. In any event, the stereotyping in this case did not simply consist of stray remarks. On the contrary, Hopkins proved that Price Waterhouse invited partners to submit comments; that some of the comments stemmed from sex stereotypes; that an important part of the Policy Board's decision on Hopkins was an assessment of the submitted comments; and that Price Waterhouse in no way disclaimed reliance on the sex-linked evaluations. This is not, as Price Waterhouse suggests, "discrimination in the air"; rather, it is, as Hopkins puts it, "discrimination brought to ground and visited upon" an employee. Brief for Respondent 30. By focusing on Hopkins' specific proof, however, we do not suggest a limitation on the possible ways Page 490 U. S. 252 of proving that stereotyping played a motivating role in an employment decision, and we refrain from deciding here which specific facts, "standing alone," would or would not establish a plaintiff's case, since such a decision is unnecessary in this case. But see post at 490 U. S. 277 (O'CONNOR, J., concurring in judgment).As to the employer's proof, in most cases, the employer should be able to present some objective evidence as to its probable decision in the absence Page 490 U. S. 253 of an impermissible motive. [Footnote 14] Moreover, proving "'that the same decision would have been justified . . . is not the same as proving that the same decision would have been made.'" Givhan, 439 U.S. at 439 U. S. 416, quoting Ayers v. Western Line Consolidated School District, 555 F.2d 1309, 1315 (CA5 1977). An employer may not, in other words, prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Finally, an employer may not meet its burden in such a case by merely showing that, at the time of the decision, it was motivated only in part by a legitimate reason. The very premise of a mixed-motives case is that a legitimate reason was present, and indeed, in this case, Price Waterhouse already has made this showing by convincing Judge Gesell that Hopkins' interpersonal problems were a legitimate concern. The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision.IIIThe courts below held that an employer who has allowed a discriminatory impulse to play a motivating part in an employment decision must prove by clear and convincing evidence that it would have made the same decision in the absence of discrimination. We are persuaded that the better rule is that the employer must make this showing by a preponderance of the evidence.Conventional rules of civil litigation generally apply in Title VII cases, see, e.g., United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 460 U. S. 716 (1983) (discrimination not to be "treat[ed] . . . differently from other ultimate questions of fact"), and one of these rules is that parties to civil litigation need only prove their case by a preponderance of the evidence. See, e.g., Herman & MacLean v. Huddleston, 459 U. S. 375, 459 U. S. 390 (1983). Exceptions to this standard are uncommon, and in fact are ordinarily recognized only when the government seeks to take unusual coercive action -- action more dramatic than entering an award of money damages or other conventional relief -- against an individual. See Santosky v. Kramer, 455 U. S. 745, 455 U. S. 756 (1982) (termination of parental rights); Addington v. Texas, 441 U. S. 418, 441 U. S. 427 (1979) (involuntary commitment); Woodby v. INS, 385 U. S. 276 (1966) (deportation); Schneiderman v. United States, 320 U. S. 118, 320 U. S. 122, 320 U. S. 125 (1943) (denaturalization). Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief, see, e.g., Gertz v. Robert Welch, Inc., 418 U. S. 323, 418 U. S. 342 (1974) (defamation), and we find it significant that, in such cases, it was the defendant, rather than the plaintiff, who sought the elevated standard of proof -- suggesting that this standard ordinarily serves as a shield, rather than, as Hopkins seeks to use it, as a sword.It is true, as Hopkins emphasizes, that we have noted the"clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage and the measure of proof necessary to enable the jury to fix the amount."Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 282 U. S. 562 (1931). Likewise, an Equal Employment Opportunity Commission (EEOC) regulation does require federal agencies proved to have violated Page 490 U. S. 254 Title VII to show by clear and convincing evidence that an individual employee is not entitled to relief. See 29 CFR § 1613.271(c)(2) (1988). And finally, it is true that we have emphasized the importance of make-whole relief for victims of discrimination. See Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975). Yet each of these sources deals with the proper determination of relief, rather than with the initial finding of liability. This is seen most easily in the EEOC's regulation, which operates only after an agency or the EEOC has found that "an employee of the agency was discriminated against." See 29 CFR § 1613.271(c) (1988). Because we have held that, by proving that it would have made the same decision in the absence of discrimination, the employer may avoid a finding of liability altogether, and not simply avoid certain equitable relief, these authorities do not help Hopkins to show why we should elevate the standard of proof for an employer in this position.Significantly, the cases from this Court that most resemble this one, Mt. Healthy and Transportation Management, did not require clear and convincing proof. Mt. Healthy, 429 U.S. at 429 U. S. 287; Transportation Management, 462 U.S. at 462 U. S. 400, 462 U. S. 403. We are not inclined to say that the public policy against firing employees because they spoke out on issues of public concern or because they affiliated with a union is less important than the policy against discharging employees on the basis of their gender. Each of these policies is vitally important, and each is adequately served by requiring proof by a preponderance of the evidence.Although Price Waterhouse does not concretely tell us how its proof was preponderant, even if it was not clear and convincing, this general claim is implicit in its request for the less stringent standard. Since the lower courts required Price Waterhouse to make its proof by clear and convincing evidence, they did not determine whether Price Waterhouse had proved by a preponderance of the evidence that it would have placed Hopkins' candidacy on hold even if it had not permitted Page 490 U. S. 255 sex-linked evaluations to play a part in the decisionmaking process. Thus, we shall remand this case so that that determination can be made.IVThe District Court found that sex stereotyping "was permitted to play a part" in the evaluation of Hopkins as a candidate for partnership. 618 F. Supp. at 1120. Price Waterhouse disputes both that stereotyping occurred and that it played any part in the decision to place Hopkins' candidacy on hold. In the firm's view, in other words, the District Court's factual conclusions are clearly erroneous. We do not agree.In finding that some of the partners' comments reflected sex stereotyping, the District Court relied in part on Dr. Fiske's expert testimony. Without directly impugning Dr. Fiske's credentials or qualifications, Price Waterhouse insinuates that a social psychologist is unable to identify sex stereotyping in evaluations without investigating whether those evaluations have a basis in reality. This argument comes too late. At trial, counsel for Price Waterhouse twice assured the court that he did not question Dr. Fiske's expertise (App. 25), and failed to challenge the legitimacy of her discipline. Without contradiction from Price Waterhouse, Fiske testified that she discerned sex stereotyping in the partners' evaluations of Hopkins, and she further explained that it was part of her business to identify stereotyping in written documents. Id. at 64. We are not inclined to accept petitioner's belated and unsubstantiated characterization of Dr. Fiske's testimony as "gossamer evidence" (Brief for Petitioner 20) based only on "intuitive hunches" (id. at 44) and of her detection of sex stereotyping as "intuitively divined" (id. at 43). Nor are we disposed to adopt the dissent's dismissive attitude toward Dr. Fiske's field of study and toward her own professional integrity, see post at 490 U. S. 293-294, n. 5. Page 490 U. S. 256Indeed, we are tempted to say that Dr. Fiske's expert testimony was merely icing on Hopkins' cake. It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring "a course at charm school." Nor, turning to Thomas Beyer's memorable advice to Hopkins, does it require expertise in psychology to know that, if an employee's flawed "interpersonal skills" can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex, and not her interpersonal skills, that has drawn the criticism. [Footnote 15]Price Waterhouse also charges that Hopkins produced no evidence that sex stereotyping played a role in the decision to place her candidacy on hold. As we have stressed, however, Hopkins showed that the partnership solicited evaluations from all of the firm's partners; that it generally relied very heavily on such evaluations in making its decision; that some of the partners' comments were the product of stereotyping; and that the firm in no way disclaimed reliance on those particular comments, either in Hopkins' case or in the past. Certainly a plausible -- and, one might say, inevitable -- conclusion to draw from this set of circumstances is that the Policy Board, in making its decision, did in fact take into account all of the partners' comments, including the comments that were motivated by stereotypical notions about women's proper deportment. [Footnote 16] Page 490 U. S. 257Price Waterhouse concedes that the proof in Transportation Management adequately showed that the employer there had relied on an impermissible motivation in firing the plaintiff. Brief for Petitioner 45. But the only evidence in that case that a discriminatory motive contributed to the plaintiff's discharge was that the employer harbored a grudge toward the plaintiff on account of his union activity; there was, contrary to Price Waterhouse's suggestion, no direct evidence that that grudge had played a role in the decision, and, in fact, the employer had given other reasons in explaining the plaintiff's discharge. See 462 U.S. at 462 U. S. 396. If the partnership considers that proof sufficient, we do not know why it takes such vehement issue with Hopkins' proof.Nor is the finding that sex stereotyping played a part in the Policy Board's decision undermined by the fact that many of the suspect comments were made by supporters, rather than detractors, of Hopkins. A negative comment, even when made in the context of a generally favorable review, nevertheless may influence the decisionmaker to think less highly of the candidate; the Policy Board, in fact, did not simply tally the "yesses" and "noes" regarding a candidate, but carefully reviewed the content of the submitted comments. The additional suggestion that the comments were made by "persons outside the decisionmaking chain" (Brief for Petitioner 48) -- and therefore could not have harmed Hopkins -- simply ignores the critical role that partners' comments played in the Policy Board's partnership decisions.Price Waterhouse appears to think that we cannot affirm the factual findings of the trial court without deciding that, instead of being overbearing and aggressive and curt, Hopkins is, in fact, kind and considerate and patient. If this is indeed its impression, petitioner misunderstands the theory Page 490 U. S. 258 on which Hopkins prevailed. The District Judge acknowledged that Hopkins' conduct justified complaints about her behavior as a senior manager. But he also concluded that the reactions of at least some of the partners were reactions to her as a woman manager. Where an evaluation is based on a subjective assessment of a person's strengths and weaknesses, it is simply not true that each evaluator will focus on, or even mention, the same weaknesses. Thus, even if we knew that Hopkins had "personality problems," this would not tell us that the partners who cast their evaluations of Hopkins in sex-based terms would have criticized her as sharply (or criticized her at all) if she had been a man. It is not our job to review the evidence and decide that the negative reactions to Hopkins were based on reality; our perception of Hopkins' character is irrelevant. We sit not to determine whether Ms. Hopkins is nice, but to decide whether the partners reacted negatively to her personality because she is a woman.VWe hold that, when a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account. Because the courts below erred by deciding that the defendant must make this proof by clear and convincing evidence, we reverse the Court of Appeals' judgment against Price Waterhouse on liability and remand the case to that court for further proceedings.It is so ordered | U.S. Supreme CourtPrice Waterhouse v. Hopkins, 490 U.S. 228 (1989)Price Waterhouse v. HopkinsNo. 87-1167Argued October 31, 1988Decided May 1, 1989490 U.S. 228SyllabusRespondent was a senior manager in an office of petitioner professional accounting partnership when she was proposed for partnership in 1982. She was neither offered nor denied partnership, but instead her candidacy was held for reconsideration the following year. When the partners in her office later refused to repropose her for partnership, she sued petitioner in Federal District Court under Title VII of the Civil Rights Act of 1964, charging that it had discriminated against her on the basis of sex in its partnership decisions. The District Court ruled in respondent's favor on the question of liability, holding that petitioner had unlawfully discriminated against her on the basis of sex by consciously giving credence and effect to partners' comments about her that resulted from sex stereotyping. The Court of Appeals affirmed. Both courts held that an employer who has allowed a discriminatory motive to play a part in an employment decision must prove by clear and convincing evidence that it would have made the same decision in the absence of discrimination, and that petitioner had not carried this burden.Held: The judgment is reversed, and the case is remanded.263 U.S.App.D.C. 321, 825 F.2d 458, reversed and remanded.JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS, concluded that, when a plaintiff in a Title VII case proves that her gender played a part in an employment decision, the defendant may avoid a finding of liability by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account. The courts below erred by requiring petitioner to make its proof by clear and convincing evidence. Pp. 490 U. S. 237-258.(a) The balance between employee rights and employer prerogatives established by Title VII by eliminating certain bases for distinguishing among employees, while otherwise preserving employers' freedom of choice, is decisive in this case. The words "because of" in § 703(a)(1) of the Act, which forbids an employer to make an adverse decision against an employee "because of such individual's . . . sex," requires looking at all of the reasons, both legitimate and illegitimate, contributing to the decision at the time it is made. The preservation of employers' freedom of choice means that an employer will not be liable if it can prove that, if Page 490 U. S. 229 it had not taken gender into account, it would have come to the same decision. This Court's prior decisions demonstrate that the plaintiff who shows that an impermissible motive played a motivating part in an adverse employment decision thereby places the burden on the defendant to show that it would have made the same decision in the absence of the unlawful motive. Here, petitioner may not meet its burden by merely showing that respondent's interpersonal problems -- abrasiveness with staff members -- constituted a legitimate reason for denying her partnership; instead, petitioner must show that its legitimate reason, standing alone, would have induced petitioner to deny respondent partnership. Pp. 490 U. S. 239-252.(b) Conventional rules of civil litigation generally apply in Title VII cases, and one of these rules is that the parties need only prove their case by a preponderance of the evidence. Pp. 490 U. S. 252-255.(c) The District Court's finding that sex stereotyping was permitted to play a part in evaluating respondent as a candidate for partnership was not clearly erroneous. This finding is not undermined by the fact that many of the suspect comments made about respondent were made by partners who were supporters, rather than detractors. Pp. 490 U. S. 255-258.JUSTICE WHITE, although concluding that the Court of Appeals erred in requiring petitioner to prove by clear and convincing evidence that it would have reached the same employment decision in the absence of the improper motive, rather than merely requiring proof by a preponderance of the evidence, as in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, which sets forth the proper approach to causation in this case, also concluded that the plurality here errs in seeming to require, at least in most cases, that the employer carry its burden by submitting objective evidence that the same result would have occurred absent the unlawful motivation. In a mixed-motives case, where the legitimate motive found would have been ample grounds for the action taken, and the employer credibly testifies that the action would have been taken for the legitimate reasons alone, this should be ample proof, and there is no special requirement of objective evidence. This would even more plainly be the case where the employer denies any illegitimate motive in the first place, but the court finds that illegitimate, as well as legitimate, factors motivated the adverse action. Pp. 490 U. S. 258-261.JUSTICE O'CONNOR, although agreeing that, on the facts of this case, the burden of persuasion should shift to petitioner to demonstrate by a preponderance of the evidence that it would have reached the same decision absent consideration of respondent's gender, and that this burden shift is properly part of the liability phase of the litigation, concluded that the plurality misreads Title VII's substantive causation requirement to command burden-shifting if the employer's decisional process is Page 490 U. S. 230 "tainted" by awareness of sex or race in any way, and thereby effectively eliminates the requirement. JUSTICE O'CONNOR also concluded that the burden-shifting rule should be limited to cases, such as the present, in which the employer has created uncertainty as to causation by knowingly giving substantial weight to an impermissible criterion. Pp. 490 U. S. 261-279.(a) Contrary to the plurality's conclusion, Title VII's plain language making it unlawful for an employer to undertake an adverse employment action "because of" prohibited factors and the statute's legislative history demonstrate that a substantive violation only occurs when consideration of an illegitimate criterion is the "but-for" cause of the adverse action. However, nothing in the language, history, or purpose of the statute prohibits adoption of an evidentiary rule which places the burden of persuasion on the defendant to demonstrate that legitimate concerns would have justified an adverse employment action where the plaintiff has convinced the factfinder that a forbidden factor played a substantial role in the employment decision. Such a rule has been adopted in tort and other analogous types of cases, where leaving the burden of proof on the plaintiff to prove "but-for" causation would be unfair or contrary to the deterrent purposes embodied in the concept of duty of care. Pp. 490 U. S. 262-269.(b) Although the burden-shifting rule adopted here departs from the careful framework established by McDonnell Douglas Corp. v. Green, 411 U. S. 792, and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 -- which clearly contemplate that an individual disparate treatment plaintiff bears the burden of persuasion throughout the litigation -- that departure is justified in cases, such as the present, where the plaintiff, having presented direct evidence that the employer placed substantial, though unquantifiable, reliance on a forbidden factor in making an employment decision, has taken her proof as far as it could go, such that it is appropriate to require the defendant, which has created the uncertainty as to causation by considering the illegitimate criterion, to show that its decision would have been justified by wholly legitimate concerns. Moreover, a rule shifting the burden in these circumstances will not conflict with other Title VII policies, particularly its prohibition on preferential treatment based on prohibited factors. Watson v. Fort Worth Bank & Trust, 487 U. S. 977, distinguished. Pp. 490 U. S. 270-276.(c) Thus, in order to justify shifting the burden on the causation issue to the defendant, a disparate treatment plaintiff must show by direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision. Such a showing entitles the factfinder to presume that the employer's discriminatory animus made a difference in the outcome, and, if the employer fails to carry its burden of persuasion, to conclude that the employer's decision was made "because of " consideration of the illegitimate factor, thereby satisfying Page 490 U. S. 231 the substantive standard for liability under Title VII. This burden-shifting rule supplements the McDonnell Douglas-Burdine framework, which continues to apply where the plaintiff has failed to satisfy the threshold standard set forth herein. Pp. 490 U. S. 276-279.BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., post, p. 490 U. S. 258, and O'CONNOR, J., post, p. 490 U. S. 261, filed opinions concurring in the judgment. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 490 U. S. 279. |
314 | 1961_498 | MR. JUSTICE BLACK delivered the opinion of the Court.The petitioner Thomas C. McConnell, a lawyer, was summarily found guilty of contempt of court for statements made while representing the Parmelee Transportation Company in an antitrust suit for treble damages Page 370 U. S. 231 and an injunction. The complaint charged that a number of defendants had unlawfully conspired to destroy Parmelee's business by restraining and monopolizing trade in violation of the Sherman Act. [Footnote 1] Petitioner and his co-counsel, Lee A. Freeman, had done extensive pretrial preparation on the issue of conspiracy, which was the heart of their case. At the very outset of the trial, however, the district judge, on his own motion, refused to permit counsel to try to prove their conspiracy charge, holding that they must first prove in a wholly separate trial that defendants' actions had resulted in an economic injury to the public -- an erroneous holding, since we have held that the right of recovery of a plaintiff in a treble damage antitrust case does not depend at all on proving an economic injury to the public. [Footnote 2]Cut off by the judge's erroneous ruling from trial of the basic issue of conspiracy, and wishing to provide a record which would allow this ruling to be reviewed by the Court of Appeals, counsel for Parmelee asked counsel for defendants to stipulate that plaintiff would have introduced certain evidence of conspiracy had it been allowed to do so. Defense counsel refused to stipulate, however, insisting that Parmelee's counsel prepare their record by following the procedure set out in Rule 43(c) of the Federal Rules of Civil Procedure, which requires that, before an offer of proof is made, questions upon which the offer is based must first be asked in the presence of the jury. [Footnote 3] Page 370 U. S. 232 Unwilling to risk dismissal of their appeal for failure to follow Rule 43(c), Parmelee's counsel proceeded to produce and question witnesses in the presence of the jury in order to lay the proper foundation for their offers of proof of conspiracy. But, during the process of this questioning, the judge ordered it stopped, and directed that any further offers of proof be made without first having asked questions of witnesses in the presence of the jury. This ruling placed Parmelee's counsel in quite a dilemma, because defense counsel was still insisting that all offers of proof be made in strict compliance with Rule 43(c), and there was no way of knowing with certainty whether the Court of Appeals would treat the trial court's order to dispense with questions before the jury as an excuse for failure to comply with the Rule. Petitioner therefore not only sought to make clear to the court that he thought defense counsel's objection was "right," [Footnote 4] but also repeatedly insisted that he be allowed to make his offers of proof in compliance with the Rule. [Footnote 5] Following the trial, the judge charged petitioner and his co-counsel Freeman in a number of specifications with being guilty of contemptuous Page 370 U. S. 233 conduct during the course of the trial. After separate hearings, both lawyers were summarily found guilty by the trial judge on all specifications. Both appealed to the Court of Appeals, which reversed all of Freeman's convictions, [Footnote 6] reversed two of petitioner McConnell's convictions, but, with Judge Duffy dissenting, sustained the conviction of petitioner on Specification 6 -- the specification based on petitioner's insistence that he be allowed the make offers of proof in compliance with Rule 43(c). [Footnote 7] Even as to this conviction, however, the Court of Appeals held that the jail sentence imposed by the trial judge should be reduced to a fine of $100. As in Offutt v. United States, [Footnote 8] the "importance of assuring alert self-restraint in the exercise by district judges of the summary power for punishing contempt" prompted us to bring the case here. [Footnote 9]The statute under which petitioner was summarily convicted of contempt is 18 U.S.C. § 401, which provides that:"A court of the United States shall have power to punish by fine or imprisonment at its discretion, such contempt of its authority, and none other, as -- ""(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice. . . ."This section is based on an Act passed in 1831 [Footnote 10] in order to correct serious abuses of the summary contempt power that had grown up, and was intended as a "drastic delimitation . . . of the broad undefined power of the inferior federal courts under the Act of 1789," [Footnote 11] revealing"a Congressional Page 370 U. S. 234 intent to safeguard constitutional procedures by limiting courts, as Congress is limited in contempt cases, to 'the least possible power adequate to the end proposed.' [Footnote 12]""The exercise by federal courts of any broader contempt power than this," we have said,"would permit too great inroads on the procedural safeguards of the Bill of Rights, since contempts are summary in their nature, and leave determination of guilt to a judge, rather than a jury. [Footnote 13]"And we held long ago, in Ex parte Hudgings, [Footnote 14] that, while this statute undoubtedly shows a purpose to give courts summary powers to protect the administration of justice against immediate interruption of court business, it also means that, before the drastic procedures of the summary contempt power may be invoked to replace the protections of ordinary constitutional procedures, there must be an actual obstruction of justice:"An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted. . . ."Thus, the question in this case comes down to whether it can "clearly be shown" on this record that the petitioner's statements while attempting to make his offers of proof actually obstructed the district judge in "the performance of judicial duty."The Court of Appeals answered this question by sustaining Specification 6 only on the basis of petitioner's Page 370 U. S. 235 last sentence in the colloquy set out in the specification. That specification reads:"On April 27, 1960, in the presence and hearing of the jury, after the Court had instructed the attorneys for plaintiff to refrain from repeatedly asking questions on subjects which the Court had ruled [were] not admissible, in the presence of the jury, as distinguished from an offer of proof outside the presence of the jury, the following occurred:"" By Mr. McConnell: Now you are trying to tell us we can't ask these questions. We have a right to ask these questions, and until we are stopped from asking these questions, we are going to ask them, because it is in our prerogative in doing it."" By the Court: I am now stopping you from asking the questions about conversations with Mr. Cross, because I have ruled specifically, definitely and completely that it is not an issue in this case."" By Mr. McConnell: We have a right to ask them."" By the Court: You can offer proof on it."" By Mr. McConnell: We have a right to ask questions which we offer on this issue, and Your Honor can sustain their objection to them. We don't have a right to read the answers, but we have a right to ask the questions, and we propose to do so unless some bailiff stops us."(Emphasis added.)The record shows that, after this colloquy, petitioner's co-counsel asked for a short recess, that, following this recess, petitioner did not continue to ask questions which the judge had forbidden, and that, in fact, he did not ask any more such questions again throughout the remainder of the trial. We agree with Judge Duffy, who dissented below, that there was nothing in petitioner's conduct sufficiently Page 370 U. S. 236 disruptive of the trial court's business to be an obstruction of justice. It is true that petitioner stated that counsel had a right to ask questions that the judge did not want asked, and that "we propose to do so unless some bailiff stops us." The fact remains, however, that the bailiff never had to interrupt the trial by arresting petitioner, for the simple reason that, after this statement, petitioner never did ask any more questions along the line which the judge had forbidden. And we cannot agree that a mere statement by a lawyer of his intention to press his legal contention until the court has a bailiff stop him can amount to an obstruction of justice that can be punished under the limited powers of summary contempt which Congress has granted to the federal courts. The arguments of a lawyer in presenting his client's case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty. The petitioner created no such obstacle here.While we appreciate the necessity for a judge to have the power to protect himself from actual obstruction in the courtroom, or even from conduct so near to the court as actually to obstruct justice, it is also essential to a fair administration of justice that lawyers be able to make honest good faith efforts to present their clients' cases. An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice. To preserve the kind of trials that our system envisages, Congress has limited the summary contempt power vested in courts to the least possible power adequate to prevent actual obstruction of justice, and we think that that power did not extend to this case.Reversed | U.S. Supreme CourtIn re McConnell, 370 U.S. 230 (1962)In re McConnellNo. 498Argued April 10, 1962Decided June 18, 1962370 U.S. 230SyllabusUnder 18 U.S.C. § 401 and Federal Rule of Criminal Procedure 42(a), petitioner was summarily tried and convicted by the trial judge of criminal contempt for conduct during a trial in which petitioner represented the plaintiff in a suit under the Clayton Act for treble damages for an alleged conspiracy to destroy the plaintiff's business by restraining and monopolizing trade. At the very outset of the trial, the judge had ruled erroneously that the plaintiff's counsel could not try to prove the conspiracy charge; but, in order to comply with Federal Rule of Civil Procedure 43(c) and thus preserve his client's rights on appeal, petitioner, in the presence of the jury, persisted in asking questions intended to lay the proper foundation for offers of proof of conspiracy. The judge ordered petitioner to stop doing so, but petitioner insisted that he had a right to do so, and said he would continue to do so "unless some bailiff stops us." However, a recess was then called and thereafter petitioner asked no more of the forbidden questions.Held: there was nothing in this conduct sufficiently disruptive of the trial court's business to "obstruct the administration of justice," within the meaning of 18 U.S.C. § 401, and a judgment sustaining the conviction is reversed. Pp. 370 U. S. 230-236.294 F.2d 310 reversed. |
315 | 1994_93-1677 | out-of-state enterprises, and there is no merit in the argument that the tax discriminates against interstate activity, American Trncking Assns., Inc. v. Scheiner, 483 U. S. 266, distinguished. The tax is also fairly related to the taxpayer's presence or activities in the State. It falls on a sale that takes place wholly inside Oklahoma and is measured by the value of the service purchased. Pp. 197-200.15 F.3d 90, reversed and remanded.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 200. BREYER, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 201.Stanley P. Johnston argued the cause and filed a brief for petitioner.Steven D. DeRuyter argued the cause for respondent.With him on the brief was Loren A. Unterseher. *JUSTICE SOUTER delivered the opinion of the Court.This case raises the question whether Oklahoma's sales tax on the full price of a ticket for bus travel from Oklahoma to another State is consistent with the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. We hold that it is.IOklahoma taxes sales in the State of certain goods and services, including transportation for hire. Okla. Stat., Tit. 68, § 1354(1)(C) (Supp. 1988).1 The buyers of the taxable* Richard Ruda and Lee Fennell filed a brief for the National Conference of State Legislatures et al. as amici curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the American Bus Association by Richard A. Allen; and for Greyhound Lines, Inc., by John B. Turner, Rebecca M. Fowler, Oscar R. Cantu, and Debra A. Dandeneau.1 At the time relevant to the taxes at issue here, § 1354 provided as follows: "There is hereby levied upon all sales ... an excise tax of four percent (4%) of the gross receipts or gross proceeds of each sale of the following ... (C) Transportation for hire to persons by common carriers,178178 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.goods and services pay the taxes, which must be collected and remitted to the State by sellers. § 1361.Respondent Jefferson Lines, Inc., is a Minnesota corporation that provided bus services as a common carrier in Oklahoma from 1988 to 1990. Jefferson did not collect or remit the sales taxes for tickets it had sold in Oklahoma for bus travel from Oklahoma to other States, although it did collect and remit the taxes for all tickets it had sold in Oklahoma for travel that originated and terminated within that State.After Jefferson filed for bankruptcy protection on October 27, 1989, petitioner, Oklahoma Tax Commission, filed proof of claims in Bankruptcy Court for the uncollected taxes for tickets for interstate travel sold by Jefferson.2 Jefferson cited the Commerce Clause in objecting to the claims, and argued that the tax imposes an undue burden on interstate commerce by permitting Oklahoma to collect a percentage of the full purchase price of all tickets for interstate bus travel, even though some of that value derives from bus travel through other States. The tax also presents the danger of multiple taxation, Jefferson claimed, because any other State through which a bus travels while providing the services sold in Oklahoma will be able to impose taxes of their own upon Jefferson or its passengers for use of the roads.The Bankruptcy Court agreed with Jefferson, the District Court affirmed, and so did the United States Court of Appeals for the Eighth Circuit. In re Jefferson Lines, Inc., 15including railroads both steam and electric, motor transportation companies, taxicab companies, pullman car companies, airlines, and other means of transportation for hire." As a result of recent amendments, the statute presently provides for a 41/2 percent tax rate.2 The parties have stipulated that the dispute concerns only those taxes for Jefferson's in-state sales of tickets for travel starting in Oklahoma and ending in another State. App. 5; Tr. of Oral Arg. 3-4. The Commission does not seek to recover any taxes for tickets sold in Oklahoma for travel wholly outside of the State or for travel on routes originating in other States and terminating in Oklahoma. Accordingly, the validity of such taxes is not before us.179F. 3d 90 (1994). The Court of Appeals held that Oklahoma's tax was not fairly apportioned, as required under the established test for the constitutionality of a state tax on interstate commerce. See Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 279 (1977). The Court of Appeals understood its holding to be compelled by our decision in Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653 (1948), which held unconstitutional an unapportioned state tax on the gross receipts 3 of a company that sold tickets for interstate bus travel. The Court of Appeals rejected the Commission's position that the sale of a bus ticket is a wholly local transaction justifying a sales tax on the ticket's full value in the State where it is sold, reasoning that such a tax is indistinguishable from the unapportioned tax on gross receipts from interstate travel struck down in Central Greyhound. 15 F. 3d, at 9293. We granted certiorari, 512 U. S. 1204 (1994), and now reverse.IIDespite the express grant to Congress of the power to "regulate Commerce ... among the several States," U. S. Const., Art. I, § 8, cl. 3, we have consistently held this language to contain a further, negative command, known as the dormant Commerce Clause, prohibiting certain state taxation even when Congress has failed to legislate on the subject. Quill Corp. v. North Dakota, 504 U. S. 298, 309 (1992); Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450, 458 (1959); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 534-535 (1949); cf. Gibbons v. Ogden, 9 Wheat. 1, 209 (1824) (Marshall, C. J.) (dictum). We have understood this construction to serve the Commerce Clause's purpose of3We follow standard usage, under which gross receipts taxes are on the gross receipts from sales payable by the seller, in contrast to sales taxes, which are also levied on the gross receipts from sales but are payable by the buyer (although they are collected by the seller and remitted to the taxing entity). P. Hartman, Federal Limitations on State and Local Taxation §§ 8:1, 10:1 (1981).180180 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.preventing a State from retreating into economic isolation or jeopardizing the welfare of the Nation as a whole, as it would do if it were free to place burdens on the flow of commerce across its borders that commerce wholly within those borders would not bear. The provision thus "'reflect[s] a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.'" Wardair Canada Inc. v. Florida Dept. of Revenue, 477 U. S. 1, 7 (1986), quoting Hughes v. Oklahoma, 441 U. S. 322, 325-326 (1979); see also The Federalist Nos. 42 (J. Madison), 7 (A. Hamilton), 11 (A. Hamilton).The command has been stated more easily than its object has been attained, however, and the Court's understanding of the dormant Commerce Clause has taken some turns. In its early stages, see 1 J. Hellerstein & W. Hellerstein, State Taxation "4.05-4.08 (2d ed. 1993) (hereinafter Hellerstein & Hellerstein); Hartman, supra n. 3, §§ 2:9-2:16, the Court held the view that interstate commerce was wholly immune from state taxation "in any form," Leloup v. Port of Mobile, 127 U. S. 640, 648 (1888), "even though the same amount of tax should be laid on [intrastate] commerce," Robbins v. Shelby County Taxing Dist., 120 U. S. 489, 497 (1887); see also Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852); Brown v. Maryland, 12 Wheat. 419 (1827). This position gave way in time to a less uncompromising but formal approach, according to which, for example, the Court would invalidate a state tax levied on gross receipts from interstate commerce, New Jersey Bell Telephone Co. v. State Bd. of Taxes and Assessments of N. J., 280 U. S. 338 (1930); Meyer v. Wells, Fargo & Co., 223 U. S. 298 (1912), or upon the "freight carried" in interstate commerce, Case of the State181Freight Tax, 15 Wall. 232, 278 (1873), but would allow a tax merely measured by gross receipts from interstate commerce as long as the tax was formally imposed upon franchises, Maine v. Grand Trunk R. Co., 142 U. S. 217 (1891), or "'in lieu of all taxes upon [the taxpayer's] property,'" United States Express Co. v. Minnesota, 223 U. S. 335, 346 (1912).4 See generally Lockhart, Gross Receipts Taxes on Interstate Transportation and Communication, 57 Harv. L. Rev. 40, 43-66 (1943) (hereinafter Lockhart). Dissenting from this formal approach in 1927, Justice Stone remarked that it was "too mechanical, too uncertain in its application, and too remote from actualities, to be of value." Di Santo v. Pennsylvania, 273 U. S. 34, 44 (1927) (dissenting opinion).In 1938, the old formalism began to give way with Justice Stone's opinion in Western Live Stock v. Bureau of Revenue, 303 U. S. 250, which examined New Mexico's franchise tax, measured by gross receipts, as applied to receipts from outof-state advertisers in a journal produced by taxpayers in New Mexico but circulated both inside and outside the State. Although the assessment could have been sustained solely on prior precedent, see id., at 258; Lockhart 66, and n. 122, Justice Stone added a dash of the pragmatism that, with a brief interlude, has since become our aspiration in this quarter of the law. The Court had no trouble rejecting the claim that the "mere formation of the contract between persons in different states" insulated the receipts from taxation, Western Live Stock, 303 U. S., at 253, and it saw the business of "preparing, printing and publishing magazine advertising [as] peculiarly local" and therefore subject to taxation by the4 The Court had indeed temporarily adhered to an additional distinction between taxes upon interstate commerce such as that struck down in the Case of State Freight Tax, and taxes upon gross receipts from such commerce, which were upheld that same Term in State Tax on Railway Gross Receipts, 15 Wall. 284 (1873). This nice distinction was abandoned prior to the New Jersey Bell case in Philadelphia & Southern S. S. Co. v. Pennsylvania, 122 U. S. 326 (1887).182182 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.State within which the business operated. Id., at 258. The more "vexed question," however, was one that today we would call a question of apportionment: whether the interstate circulation of the journal barred taxation of receipts from advertisements enhanced in value by the journal's wide dissemination. Id., at 254. After rebuffing any such challenge on the ground that the burden on interstate commerce was "too remote and too attenuated" in the light of analogous taxation of railroad property, id., at 259, Justice Stone provided an "added reason" for sustaining the tax:"So far as the value contributed to appellants' New Mexico business by circulation of the magazine interstate is taxed, it cannot again be taxed elsewhere any more than the value of railroad property taxed locally. The tax is not one which in form or substance can be repeated by other states in such manner as to lay an added burden on the interstate distribution of the magazine." Id., at 260.The Court explained that "[i]t was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business." Id., at 254. Soon after Western Live Stock, the Court expressly rested the invalidation of an unapportioned gross receipts tax on the ground that it violated the prohibition against multiple taxation:"The vice of the statute as applied to receipts from interstate sales is that the tax includes in its measure, without apportionment, receipts derived from activities in interstate commerce; and that the exaction is of such a character that if lawful it may in substance be laid to the fullest extent by States in which the goods are sold as well as those in which they are manufactured." J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307, 311 (1938).183See also Gwin, White & Prince, Inc. v. Henneford, 305 U. S. 434, 438-439 (1939).After a brief resurgence of the old absolutism that proscribed all taxation formally levied upon interstate commerce, see Freeman v. Hewit, 329 U. S. 249 (1946); Spector Motor Service, Inc. v. O'Connor, 340 U. S. 602 (1951), the Court returned to Western Live Stock's multiple taxation rule in Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450 (1959), and we categorically abandoned the latter-day formalism when Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977), overruled Spector and Freeman. In Complete Auto, a business engaged in transporting cars manufactured outside the taxing State to dealers within it challenged a franchise tax assessed equally on all gross income derived from transportation for hire within the State. The taxpayer's challenge resting solely on the fact that the State had taxed the privilege of engaging in an interstate commercial activity was turned back, and in sustaining the tax, we explicitly returned to our prior decisions that"considered not the formal language of the tax statute but rather its practical effect, and have sustained a tax against Commerce Clause challenge when the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State." 430 U. S., at 279.Since then, we have often applied, and somewhat refined, what has come to be known as Complete Auto's four-part test. See, e. g., Goldberg v. Sweet, 488 U. S. 252 (1989) (tax on telephone calls); D. H. Holmes Co. v. McNamara, 486 U. S. 24 (1988) (use tax); Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159 (1983) (franchise tax); Commonwealth Edison Co. v. Montana, 453 U. S. 609 (1981) (severance tax). We apply its criteria to the tax before us today.184184 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.III AIt has long been settled that a sale of tangible goods has a sufficient nexus to the State in which the sale is consummated to be treated as a local transaction taxable by that State. McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33 (1940) (upholding tax on sale of coal shipped into taxing State by seller). So, too, in addressing the interstate provision of services, we recently held that a State in which an interstate telephone call originates or terminates has the requisite Commerce Clause nexus to tax a customer's purchase of that call as long as the call is billed or charged to a service address, or paid by an addressee, within the taxing State. Goldberg, supra, at 263. Oklahoma's tax falls comfortably within these rules. Oklahoma is where the ticket is purchased, and the service originates there. These facts are enough for concluding that "[t]here is 'nexus' aplenty here." See D. H. Holmes, supra, at 33. Indeed, the taxpayer does not deny Oklahoma's substantial nexus to the instate portion of the bus service, but rather argues that nexus to the State is insufficient as to the portion of travel outside its borders. This point, however, goes to the second prong of Complete Auto, to which we turn.BThe difficult question in this case is whether the tax is properly apportioned within the meaning of the second prong of Complete Auto's test, "the central purpose [of which] is to ensure that each State taxes only its fair share of an interstate transaction." Goldberg, supra, at 260-261. This principle of fair share is the lineal descendant of Western Live Stock's prohibition of multiple taxation, which is threatened whenever one State's act of overreaching combines with the possibility that another State will claim its fair share of the value taxed: the portion of value by which185one State exceeded its fair share would be taxed again by a State properly laying claim to it.For over a decade now, we have assessed any threat of malapportionment by asking whether the tax is "internally consistent" and, if so, whether it is "externally consistent" as well. See Goldberg, supra, at 261; Container Corp., supra, at 169. Internal consistency is preserved when the imposition of a tax identical to the one in question by every other State would add no burden to interstate commerce that intrastate commerce would not also bear. This test asks nothing about the degree of economic reality reflected by the tax, but simply looks to the structure of the tax at issue to see whether its identical application by every State in the Union would place interstate commerce at a disadvantage as compared with commerce intrastate. A failure of internal consistency shows as a matter of law that a State is attempting to take more than its fair share of taxes from the interstate transaction, since allowing such a tax in one State would place interstate commerce at the mercy of those remaining States that might impose an identical tax. See Gwin, White & Prince, 305 U. S., at 439. There is no failure of it in this case, however. If every State were to impose a tax identical to Oklahoma's, that is, a tax on ticket sales within the State for travel originating there, no sale would be subject to more than one State's tax.External consistency, on the other hand, looks not to the logical consequences of cloning, but to the economic justification for the State's claim upon the value taxed, to discover whether a State's tax reaches beyond that portion of value that is fairly attributable to economic activity within the taxing State. See Goldberg, supra, at 262; Container Corp., supra, at 169-170. Here, the threat of real multiple taxation (though not by literally identical statutes) may indicate a State's impermissible overreaching. It is to this less tidy world of real taxation that we turn now, and at length.186186 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.1The very term "apportionment" tends to conjure up allocation by percentages, and where taxation of income from interstate business is in issue, apportionment disputes have often centered around specific formulas for slicing a taxable pie among several States in which the taxpayer's activities contributed to taxable value. In Moorman Mfg. Co. v. Bair, 437 U. S. 267 (1978), for example, we considered whether Iowa could measure an interstate corporation's taxable income by attributing income to business within the State" 'in that proportion which the gross sales made within the state bear to the total gross sales.'" Id., at 270. We held that it could. In Container Corp., we decided whether California could constitutionally compute taxable income assignable to a multijurisdictional enterprise's in-state activity by apportioning its combined business income according to a formula "based, in equal parts, on the proportion of [such] business' total payroll, property, and sales which are located in the taxing State." 463 U. S., at 170. Again, we held that it could. Finally, in Central Greyhound, we held that New York's taxation of an interstate bus line's gross receipts was constitutionally limited to that portion reflecting miles traveled within the taxing jurisdiction. 334 U. S., at 663.In reviewing sales taxes for fair share, however, we have had to set a different course. A sale of goods is most readily viewed as a discrete event facilitated by the laws and amenities of the place of sale, and the transaction itself does not readily reveal the extent to which completed or anticipated interstate activity affects the value on which a buyer is taxed. We have therefore consistently approved taxation of sales without any division of the tax base among different States, and have instead held such taxes properly measurable by the gross charge for the purchase, regardless of any activity outside the taxing jurisdiction that might have preceded the sale or might occur in the future. See, e. g., M cGoldrick v. Berwind-White Coal Mining Co., supra.187Such has been the rule even when the parties to a sales contract specifically contemplated interstate movement of the goods either immediately before, or after, the transfer of ownership. See, e. g., Wardair Canada Inc. v. Florida Dept. of Revenue, 477 U. S. 1 (1986) (upholding sales tax on airplane fuel); State Tax Comm'n of Utah v. Pacific States Cast Iron Pipe Co., 372 U. S. 605 (1963) (per curiam) (upholding tax on sale that contemplated purchaser's interstate shipment of goods immediately after sale). The sale, we held, was "an activity which ... is subject to the state taxing power" so long as taxation did not "discriminat[e]" against or "obstruc[t]" interstate commerce, Berwind-White, 309 U. S., at 58, and we found a sufficient safeguard against the risk of impermissible multiple taxation of a sale in the fact that it was consummated in only one State. As we put it in Berwind- White, a necessary condition for imposing the tax was the occurrence of "a local activity, delivery of goods within the State upon their purchase for consumption." Ibid. So conceived, a sales tax on coal, for example, could not be repeated by other States, for the same coal was not imagined ever to be delivered in two States at once. Conversely, we held that a sales tax could not validly be imposed if the purchaser already had obtained title to the goods as they were shipped from outside the taxing State into the taxing State by common carrier. McLeod v. J. E. Dilworth Co., 322 U. S. 327 (1944). The out-of-state seller in that case "was through selling" outside the taxing State. Id., at 330. In other words, the very conception of the common sales tax on goods, operating on the transfer of ownership and possession at a particular time and place, insulated the buyer from any threat of further taxation of the transaction.In deriving this rule covering taxation to a buyer on sales of goods we were not, of course, oblivious to the possibility of successive taxation of related events up and down the stream of commerce, and our cases are implicit with the understanding that the Commerce Clause does not forbid the188188 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.actual assessment of a succession of taxes by different States on distinct events as the same tangible object flows along. Thus, it is a truism that a sales tax to the buyer does not preclude a tax to the seller upon the income earned from a sale, and there is no constitutional trouble inherent in the imposition of a sales tax in the State of delivery to the customer, even though the State of origin of the thing sold may have assessed a property or severance tax on it. See Berwind- White, 309 U. S., at 53; cf. Commonwealth Edison Co. v. Montana, 453 U. S. 609 (1981) (upholding severance tax on coal mined within the taxing State). In light of this settled treatment of taxes on sales of goods and other successive taxes related through the stream of commerce, it is fair to say that because the taxable event of the consummated sale of goods has been found to be properly treated as unique, an internally consistent, conventional sales tax has long been held to be externally consistent as well.2A sale of services can ordinarily be treated as a local state event just as readily as a sale of tangible goods can be located solely within the State of delivery. Cf. Goldberg v. Sweet, 488 U. S. 252 (1989). Although our decisional law on sales of services is less developed than on sales of goods, one category of cases dealing with taxation of gross sales receipts in the hands of a seller of services supports the view that the taxable event is wholly local. Thus we have held that the entire gross receipts derived from sales of services to be performed wholly in one State are taxable by that State, notwithstanding that the contract for performance of the services has been entered into across state lines with customers who reside outside the taxing State. Western Live Stock v. Bureau of Revenue, 303 U. S. 250 (1938). So, too, as we have already noted, even where interstate circulation contributes to the value of magazine advertising purchased by the customer, we have held that the Commerce Clause does not preclude a tax on its full value by the State189of publication. Id., at 254, 258-259. And where the services are performed upon tangible items retrieved from and delivered to out-of-state customers, the business performing the services may be taxed on the full gross receipts from the services, because they were performed wholly within the taxing State. Department of Treasury of Ind. v. IngramRichardson Mfg. Co. of Ind., 313 U. S. 252 (1941). Interstate activity may be essential to a substantial portion of the value of the services in the first case and essential to performance of the services in the second, but sales with at least partial performance in the taxing State justify that State's taxation of the transaction's entire gross receipts in the hands of the seller. On the analogy sometimes drawn between sales and gross receipts taxes, see International Harvester Co. v. Department of Treasury, 322 U. S. 340, 347-348 (1944); but see Norton Co. v. Department of Revenue of Ill., 340 U. S. 534, 537 (1951), there would be no reason to suppose that a different apportionment would be feasible or required when the tax falls not on the seller but on the buyer.Cases on gross receipts from sales of services include one falling into quite a different category, however, and it is on this decision that the taxpayer relies for an analogy said to control the resolution of the case before us. In 1948, the Court decided Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653, striking down New York's gross receipts tax on transportation services imposed without further apportionment on the total receipts from New York sales of bus services, almost half of which were actually provided by carriage through neighboring New Jersey and Pennsylvania. The Court held the statute fatally flawed by the failure to apportion taxable receipts in the same proportions that miles traveled through the various States bore to the total. The similarity of Central Greyhound to this case is, of course, striking, and on the assumption that the economic significance of a gross receipts tax is indistinguishable from a tax on sales the Court of Appeals held that a similar mileage190190 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.apportionment is required here, see 15 F. 3d, at 92-93, as the taxpayer now argues.We, however, think that Central Greyhound provides the wrong analogy for answering the sales tax apportionment question here. To be sure, the two cases involve the identical services, and apportionment by mileage per State is equally feasible in each. But the two diverge crucially in the identity of the taxpayers and the consequent opportunities that are understood to exist for multiple taxation of the same taxpayer. Central Greyhound did not rest simply on the mathematical and administrative feasibility of a mileage apportionment, but on the Court's express understanding that the seller-taxpayer was exposed to taxation by New Jersey and Pennsylvania on portions of the same receipts that New York was taxing in their entirety. The Court thus understood the gross receipts tax to be simply a variety of tax on income, which was required to be apportioned to reflect the location of the various interstate activities by which it was earned. This understanding is presumably the reason that the Central Greyhound Court said nothing about the arguably local character of the levy on the sales transaction.5 Instead, the Court heeded Berwind- White's warning about "[p]rivilege taxes requiring a percentage of the gross receipts from interstate transportation," which "if sustained, could be imposed wherever the interstate activity occurs .... " 309 U. S., at 45-46, n. 2.Here, in contrast, the tax falls on the buyer of the services, who is no more subject to double taxation on the sale of these services than the buyer of goods would be. The taxable event comprises agreement, payment, and delivery of some of the services in the taxing State; no other State can claim to be the site of the same combination. The economic activity represented by the receipt of the ticket for "consumption" in the form of commencement and partial provision of the5 Although New York's tax reached the gross receipts only from ticket sales within New York State, 334 U. S., at 664, 666 (Murphy, J., dissenting), the majority makes no mention of this fact.191transportation thus closely resembles Berwind- White's "delivery of goods within the State upon their purchase for consumption," id., at 58, especially given that full "consumption" or "use" of the purchased goods within the taxing State has never been a condition for taxing a sale of those goods. Although the taxpayer seeks to discount these resemblances by arguing that sale does not occur until delivery is made, nothing in our case law supports the view that when delivery is made by services provided over time and through space a separate sale occurs at each moment of delivery, or when each State's segment of transportation State by State is complete. The analysis should not lose touch with the common understanding of a sale, see Goldberg, 488 U. S., at 262; the combined events of payment for a ticket and its delivery for present commencement of a trip are commonly understood to suffice for a sale.In sum, the sales taxation here is not open to the double taxation analysis on which Central Greyhound turned, and that decision does not control. Before we classify the Oklahoma tax with standard taxes on sales of goods, and with the taxes on less complicated sales of services, however, two questions may helpfully be considered.3Although the sale with partial delivery cannot be duplicated as a taxable event in any other State, and multiple taxation under an identical tax is thus precluded, is there a possibility of successive taxation so closely related to the transaction as to indicate potential unfairness of Oklahoma's tax on the full amount of sale? And if the answer to that question is no, is the very possibility of apportioning by mileage a sufficient reason to conclude that the tax exceeds the fair share of the State of sale?aThe taxpayer argues that anything but a Central Greyhound mileage apportionment by State will expose it to the192192 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.same threat of multiple taxation assumed to exist in that case: further taxation, that is, of some portion of the value already taxed, though not under a statute in every respect identical to Oklahoma's. But the claim does not hold up. The taxpayer has failed to raise any specter of successive taxes that might require us to reconsider whether an internally consistent tax on sales of services could fail the external consistency test for lack of further apportionment (a result that no sales tax has ever suffered under our cases).If, for example, in the face of Oklahoma's sales tax, Texas were to levy a sustainable, apportioned gross receipts tax on the Texas portion of travel from Oklahoma City to Dallas, interstate travel would not be exposed to multiple taxation in any sense different from coal for which the producer may be taxed first at point of severance by Montana and the customer may later be taxed upon its purchase in New York. The multiple taxation placed upon interstate commerce by such a confluence of taxes is not a structural evil that flows from either tax individually, but it is rather the "accidental incident of interstate commerce being subject to two different taxing jurisdictions." Lockhart 75; See Moorman Mfg. Co., 437 U. S., at 277.66 Any additional gross receipts tax imposed upon the interstate bus line would, of course, itself have to respect well-understood constitutional strictures. Thus, for example, Texas could not tax the bus company on the full value of the bus service from Oklahoma City to Dallas when the ticket is sold in Oklahoma, because that tax would, among other things, be internally inconsistent. And if Texas were to impose a tax upon the bus company measured by the portion of gross receipts reflecting in-state travel, it would have to impose taxes on intrastate and interstate journeys alike. In the event Texas chose to limit the burden of successive taxes attributable to the same transaction by combining an apportioned gross receipts tax with a credit for sales taxes paid to Texas, for example, it would have to give equal treatment to service into Texas purchased subject to a sales tax in another State, which it could do by granting a credit for sales taxes paid to any State. See, e. g., Henneford v. Silas Mason Co., 300 U. S. 577, 583-584 (1937) (upholding use tax which provided credit for sales taxes paid to any State); Halliburton Oil Well Cementing Co. v.193Nor has the taxpayer made out a case that Oklahoma's sales tax exposes any buyer of a ticket in Oklahoma for travel into another State to multiple taxation from taxes imposed upon passengers by other States of passage. Since a use tax, or some equivalent on the consumption of services, is generally levied to compensate the taxing State for itsReily, 373 U. S. 64, 70 (1963) ("[E]qual treatment for in-state and out-ofstate taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state"); Maryland v. Louisiana, 451 U. S. 725, 759 (1981) (striking down Louisiana's "first use" tax on imported gas because "the pattern of credits and exemptions allowed under the ... statute undeniably violates this principle of equality"); Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S. 232, 240248 (1987) (striking down Washington's gross receipts wholesaling tax exempting in-state, but not out-of-state, manufacturers); see also Boston Stock Exchange v. State Tax Comm'n, 429 U. S. 318, 331-332 (1977).Although we have not held that a State imposing an apportioned gross receipts tax that grants a credit for sales taxes paid in state must also extend such a credit to sales taxes paid out of state, see, e. g., Halliburton, supra, at 77 (Brennan, J., concurring); Silas Mason, supra, at 587; see also Williams v. Vermont, 472 U. S. 14,21-22 (1985), we have noted that equality of treatment of interstate and intrastate activity has been the common theme among the paired (or "compensating") tax schemes that have passed constitutional muster, see, e. g., Boston Stock Exchange, supra, at 331-332. We have indeed never upheld a tax in the face of a substantiated charge that it provided credits for the taxpayer's payment of in-state taxes but failed to extend such credit to payment of equivalent out-of-state taxes. To the contrary, in upholding tax schemes providing credits for taxes paid in state and occasioned by the same transaction, we have often pointed to the concomitant credit provisions for taxes paid out of state as supporting our conclusion that a particular tax passed muster because it treated out-of-state and in-state taxpayers alike. See, e. g., Itel Containers Int'l Corp. v. Huddleston, 507 U. S. 60, 74 (1993); D. H. Holmes Co. v. McNamara, 486 U. S. 24, 31 (1988) ("The ... taxing scheme is fairly apportioned, for it provides a credit against its use tax for sales taxes that have been paid in other States"); General Trading Co. v. State Tax Comm'n of Iowa, 322 U. S. 335 (1944); Silas Mason, supra, at 584. A general requirement of equal treatment is thus amply clear from our precedent. We express no opinion on the need for equal treatment when a credit is allowed for payment of in- or out-of-state taxes by a third party. See Darnell v. Indiana, 226 U. S. 390 (1912).194194 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.incapacity to reach the corresponding sale, it is commonly paired with a sales tax, see, e. g., D. H. Holmes, 486 U. S., at 31; Boston Stock Exchange v. State Tax Comm'n, 429 U. S. 318, 331-332 (1977); Henneford v. Silas Mason Co., 300 U. S. 577 (1937), being applicable only when no sales tax has been paid or subject to a credit for any such tax paid. Since any use tax would have to comply with Commerce Clause requirements, the tax scheme could not apply differently to goods and services purchased out of state from those purchased domestically. Presumably, then, it would not apply when another State's sales tax had previously been paid, or would apply subject to credit for such payment. In either event, the Oklahoma ticket purchaser would be free from multiple taxation.True, it is not Oklahoma that has offered to provide a credit for related taxes paid elsewhere, but in taxing sales Oklahoma may rely upon use-taxing States to do so. This is merely a practical consequence of the structure of use taxes as generally based upon the primacy of taxes on sales, in that use of goods is taxed only to the extent that their prior sale has escaped taxation. Indeed the District of Columbia and 44 of the 45 States that impose sales and use taxes permit such a credit or exemption for similar taxes paid to other States. See 2 Hellerstein & Hellerstein , 18.08, p. 18-48; 1 All States Tax Guide , 256 (1994). As one state court summarized the provisions in force:"These credit provisions create a national system under which the first state of purchase or use imposes the tax. Thereafter, no other state taxes the transaction unless there has been no prior tax imposed ... or if the tax rate of the prior taxing state is less, in which case the subsequent taxing state imposes a tax measured only by the differential rate." KSS Transportation Corp. v. Baldwin, 9 N. J. Tax 273, 285 (1987).195The case of threatened multiple taxation where a sales tax is followed by a use tax is thus distinguishable from the case of simultaneous sales taxes considered in Goldberg, where we were reassured to some degree by the provision of a credit in the disputed tax itself for similar taxes placed upon the taxpayer by other States. See Goldberg, 488 U. S., at 264 ("To the extent that other States' telecommunications taxes pose a risk of multiple taxation, the credit provision contained in the [t]ax [a]ct operates to avoid actual multiple taxation"). In that case, unlike the sales and use schemes posited for the sake of argument here, each of the competing sales taxes would presumably have laid an equal claim on the taxpayer's purse.bFinally, Jefferson points to the fact that in this case, unlike the telephone communication tax at issue in Goldberg, Oklahoma could feasibly apportion its sales tax on the basis of mileage as we required New York's gross receipts tax to do in Central Greyhound. Although Goldberg indeed noted that "[a]n apportionment formula based on mileage or some other geographic division of individual telephone calls would produce insurmountable administrative and technological barriers," 488 U. S., at 264-265, and although we agree that no comparable barriers exist here, we nonetheless reject the idea that a particular apportionment formula must be used simply because it would be possible to use it. We have never required that any particular apportionment formula or method be used, and when a State has chosen one, an objecting taxpayer has the burden to demonstrate by "'clear and cogent evidence,'" that" 'the income attributed to the State is in fact out of all appropriate proportions to the business transacted ... in that State, or has led to a grossly distorted result.''' Container Corp., 463 U. S., at 170, quoting Moorman Mfg. Co., 437 U. S., at 274 (internal quotation marks omitted; citations omitted). That is too much for Jefferson196196 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.to bear in this case. It fails to show that Oklahoma's tax on the sale of transportation imputes economic activity to the State of sale in any way substantially different from that imputed by the garden-variety sales tax, which we have perennially sustained, even though levied on goods that have traveled in interstate commerce to the point of sale or that will move across state lines thereafter. See, e. g., Wardair Canada Inc. v. Florida Dept. of Revenue, 477 U. S. 1 (1986); McGoldrick v. Berwind- White Coal Mining Co., 309 U. S. 33 (1940); State Tax Comm'n of Utah v. Pacific States Cast Iron Pipe Co., 372 U. S. 605 (1963); see also Western Live Stock, 303 U. S., at 259 (upholding tax where measure of the tax "include[s] the augmentation attributable to the [interstate] commerce in which [the object of the tax] is employed"); Goldberg, 488 U. S., at 262 (upholding tax upon the purchase of an interstate telephone call which had "many of the characteristics of a sales tax ... [e]ven though such a retail purchase is not a purely local event since it triggers simultaneous activity in several States"). Nor does Oklahoma's tax raise any greater threat of multiple taxation than those sales taxes that have passed muster time and again. There is thus no reason to leave the line of longstanding precedent and lose the simplicity of our general rule sustaining sales taxes measured by full value, simply to carve out an exception for the subcategory of sales of interstate transportation services. We accordingly conclude that Oklahoma's tax on ticket sales for travel originating in Oklahoma is externally consistent, as reaching only the activity taking place within the taxing State, that is, the sale of the service. Cf. id., at 261-262; Container Corp., supra, at 169-170.77 JUSTICE BREYER would reject review of the tax under general sales tax principles in favor of an analogy between sales and gross receipts taxes which, in the dissent's view, are without "practical difference," post, at 204. Although his dissenting opinion rightly counsels against the adoption of purely formal distinctions, economic equivalence alone has similarly not been (and should not be) the touchstone of Commerce Clause jurispru-197cWe now turn to the remaining two portions of Complete Auto's test, which require that the tax must "not discriminate against interstate commerce," and must be "fairly related to the services provided by the State." 430 U. S., at 279. Oklahoma's tax meets these demands.A State may not "impose a tax which discriminates against interstate commerce ... by providing a direct commercial advantage to local business." Northwestern States Portland Cement Co. v. Minnesota, 358 U. S., at 458; see also American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 269 (1987). Thus, States are barred from discriminating against foreign enterprises competing with local businesses, see, e. g., id., at 286, and from discriminating against commercial activity occurring outside the taxing State, see, e. g., Boston Stock Exchange v. State Tax Comm'n, 429 U. S. 318 (1977). No argument has been made that Oklahoma dis-dence. Our decisions cannot be reconciled with the view that two taxes must inevitably be equated for purposes of constitutional analysis by virtue of the fact that both will ultimately be "pass[ed] ... along to the customer" or calculated in a similar fashion, ibid. Indeed, were that to be the case, we could not, for example, dismiss successive taxation of the extraction, sale, and income from the sale of coal as consistent with the Commerce Clause's prohibition against multiple taxation.JUSTICE BREYER'S opinion illuminates the difference between his view and our own in its suggestion, post, at 206, that our disagreement turns on differing assessments of the force of competing analogies. His analogy to Central Greyhound derives strength from characterizing the tax as falling on "interstate travel," post, at 207, or "transportation," post, at 202. Our analogy to prior cases on taxing sales of goods and services derives force from identifying the taxpayer in categorizing the tax and from the value of a uniform rule governing taxation on the occasion of what is generally understood as a sales transaction. The significance of the taxpayer's identity is, indeed, central to the Court's longstanding recognition of structural differences that permit successive taxation as an incident of multiple taxing jurisdictions. The decision today is only the latest example of such a recognition and brings us as close to simplicity as the conceptual distinction between sales and income taxation is likely to allow.198198 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.criminates against out-of-state enterprises, and there is no merit in the argument that the tax discriminates against interstate activity.The argument proffered by Jefferson and amicus Greyhound Lines is largely a rewriting of the apportionment challenge rejected above, and our response needs no reiteration here. See Brief for Respondent 40; Brief for Greyhound Lines, Inc., as Amicus Curiae 20-27. Jefferson takes the additional position, however, that Oklahoma discriminates against out-of-state travel by taxing a ticket "at the full 4% rate" regardless of whether the ticket relates to "a route entirely within Oklahoma" or to travel "only 10 percent within Oklahoma." Brief for Respondent 40. In making the same point, amicus Greyhound invokes our decision in Scheiner, which struck down Pennsylvania's fiat tax on all trucks traveling in and through the State as "plainly discriminatory." 483 U. S., at 286. But that case is not on point.In Scheiner, we held that a fiat tax on trucks for the privilege of using Pennsylvania's roads discriminated against interstate travel, by imposing a cost per mile upon out-of-state trucks far exceeding the cost per mile borne by local trucks that generally traveled more miles on Pennsylvania roads. Ibid. The tax here differs from the one in Scheiner, however, by being imposed not upon the use of the State's roads, but upon "the freedom of purchase." McLeod v. J. E. Dilworth Co., 322 U. S., at 330. However complementary the goals of sales and use taxes may be, the taxable event for one is the sale of the service, not the buyer's enjoyment or the privilege of using Oklahoma's roads. Since Oklahoma facilitates purchases of the services equally for intrastate and interstate travelers, all buyers pay tax at the same rate on the value of their purchases. See D. H. Holmes, 486 U. S., at 32; cf. Scheiner, supra, at 291 ("[T]he amount of Pennsylvania's ... taxes owed by a trucker does not vary directly ... with some ... proxy for value obtained from the State"). Thus, even if dividing Oklahoma sales taxes by199in-state miles to be traveled produces on average a higher figure when interstate trips are sold than when the sale is of a wholly domestic journey, there is no discrimination against interstate travel; miles traveled within the State simply are not a relevant proxy for the benefit conferred upon the parties to a sales transaction. As with a tax on the sale of tangible goods, the potential for interstate movement after the sale has no bearing on the reason for the sales tax. See, e. g., Wardair Canada Inc. v. Florida Dept. of Revenue, 477 U. S. 1 (1986) (upholding sales tax on airplane fuel); cf. Commonwealth Edison Co., 453 U. S., at 617-619 (same for severance tax). Only Oklahoma can tax a sale of transportation to begin in that State, and it imposes the same duty on equally valued purchases regardless of whether the purchase prompts interstate or only intrastate movement. There is no discrimination against interstate commerce.DFinally, the Commerce Clause demands a fair relation between a tax and the benefits conferred upon the taxpayer by the State. See Goldberg, 488 U. S., at 266-267; D. H. Holmes, supra, at 32-34; Commonwealth Edison, supra, at 621-629. The taxpayer argues that the tax fails this final prong because the buyer's only benefits from the taxing State occur during the portion of the journey that takes place in Oklahoma. The taxpayer misunderstands the import of this last requirement.The fair relation prong of Complete Auto requires no detailed accounting of the services provided to the taxpayer on account of the activity being taxed, nor, indeed, is a State limited to offsetting the public costs created by the taxed activity. If the event is taxable, the proceeds from the tax may ordinarily be used for purposes unrelated to the taxable event. Interstate commerce may thus be made to pay its fair share of state expenses and "'contribute to the cost of providing all governmental services, including those serv-200200 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.SCALIA, J., concurring in judgmentices from which it arguably receives no direct "benefit."'" Goldberg, supra, at 267, quoting Commonwealth Edison, supra, at 627, n. 16 (emphasis in original). The bus terminal may not catch fire during the sale, and no robbery there may be foiled while the buyer is getting his ticket, but police and fire protection, along with the usual and usually forgotten advantages conferred by the State's maintenance of a civilized society, are justifications enough for the imposition of a tax. See Goldberg, supra, at 267. Complete Auto's fourth criterion asks only that the measure of the tax be reasonably related to the taxpayer's presence or activities in the State. See Commonwealth Edison, supra, at 626, 629. What we have already said shows that demand to be satisfied here. The tax falls on the sale that takes place wholly inside Oklahoma and is measured by the value of the service purchased.IVOklahoma's tax on the sale of transportation services does not contravene the Commerce Clause. The judgment of the Court of Appeals is reversed, accordingly, and the case is remanded for further proceedings consistent with this opinion.It is so ordered | OCTOBER TERM, 1994SyllabusOKLAHOMA TAX COMMISSION v. JEFFERSON LINES, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 93-1677. Argued November 28, 1994-Decided April 3, 1995Respondent Jefferson Lines, Inc., a common carrier, did not collect or remit to Oklahoma the state sales tax on bus tickets sold in Oklahoma for interstate travel originating there, although it did so for tickets sold for intrastate travel. After Jefferson filed for bankruptcy, petitioner, Oklahoma Tax Commission, filed proof of claims for the uncollected taxes, but the Bankruptcy Court found that the tax was inconsistent with the Commerce Clause in that it imposed an undue burden on interstate commerce and presented a danger of multiple taxation. The District Court affirmed. The Court of Appeals also affirmed, holding that the tax was not fairly apportioned. Rejecting the Commission's position that a bus ticket sale is a wholly local transaction justifying a State's sales tax on the ticket's full value, the court reasoned that such a tax is indistinguishable from New York's unapportioned tax on an interstate bus line's gross receipts struck down by this Court in Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653.Held: Oklahoma's tax on the sale of transportation services is consistent with the Commerce Clause. Pp. 179-200.(a) Under Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, Oklahoma's tax is valid if it is applied to an activity with a substantial nexus with the State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State. The activity here clearly has a nexus with Oklahoma, the State where the ticket is purchased and the service originates. Pp. 179-184.(b) The purpose of the second prong of Complete Auto's test is to ensure that each State taxes only its fair share of an interstate transaction. A properly apportioned tax must be both internally and externally consistent. Internal consistency looks to whether a tax's identical application by every State would place interstate commerce at a disadvantage as compared with intrastate commerce. There is no failure of such consistency in this case, for if every State were to impose a tax identical to Oklahoma's-i. e., a tax on ticket sales within the State for travel originating there-no sale would be subject to more than one State's tax. External consistency, on the other hand, looks to the economic justification for the State's claim upon the value taxed, to discover176176 OKLAHOMA TAX COMM'N v. JEFFERSON LINES, INC.Syllabuswhether the tax reaches beyond the portion of value that is fairly attributable to economic activity within the taxing State. Pp. 184-185.(c) Where taxation of income from interstate business is in issue, apportionment disputes have often focused on slicing a taxable pie among several States in which the taxpayer's activities contributed to taxable income. When examining the taxation of a sale of goods, however, the sale is most readily viewed as a discrete event facilitated by the laws and amenities of the place of sale, and the transaction itself does not readily reveal the extent to which interstate activity affects the value on which a buyer is taxed. Thus, taxation of sales has been consistently approved without any division of the tax base among different States and has been found properly measurable by the gross charge for the purchase, regardless of any activity outside the taxing jurisdiction that might have preceded the sale or might occur in the future. Therefore, an internally consistent, conventional sales tax has long been held to be externally consistent as well. Pp. 186-188.(d) A sale of services can ordinarily be treated as a local state event just as readily as a sale of tangible goods can be located solely within the State of delivery. Sales of services with performance wholly in the taxing State justify that State's taxation of the transaction's entire gross receipts in the hands of the seller. Even where interstate activity contributes to the value of the service performed, sales with performance in the taxing State justify that State's taxation of the seller's entire gross receipts. See, e. g., Western Live Stock v. Bureau of Revenue, 303 U. S. 250. In this case, although the service is performed only partially within the taxing State, the buyer is no more subject to double taxation on the sale of services than the buyer of goods would be. The taxable event here comprises agreement, payment, and delivery of some of the services in the taxing State. No other State can claim to be the site of the same combination, and these combined events are commonly understood to suffice for a sale. Central Greyhound, supra, distinguished. pp. 188-191.(e) Jefferson offers no convincing reasons to reconsider whether this internally consistent tax on sales of services could fail the external consistency test for lack offurther apportionment. It has raised no specter of successive taxation so closely related to the transaction as to indicate potential unfairness of Oklahoma's tax on the sale's full amount. Nor is the fact that Oklahoma could feasibly apportion its tax on the basis of mileage, as New York was required to do in Central Greyhound, supra, a sufficient reason to conclude that the tax exceeds Oklahoma's fair share. pp. 191-196.(f) The tax also meets the remaining two prongs of Complete Auto's test. No argument has been made that Oklahoma discriminates against177Full Text of Opinion |
316 | 1999_98-1960 | Susan S. Wagner argued the cause for respondent. With her on the brief was Edward P. Meyerson.JUSTICE SOUTER delivered the opinion of the Court.This case raises the issue whether the venue provisions of the Federal Arbitration Act (FAA or Act), 9 U. S. C. §§ 9-11, are restrictive, allowing a motion to confirm, vacate, or modify an arbitration award to be brought only in the district in which the award was made, or are permissive, permitting such a motion either where the award was made or in any district proper under the general venue statute. We hold the FAA provisions permissive.IPetitioner Cortez Byrd Chips, Inc., and respondent Bill Harbert Construction Company agreed that Harbert would build a wood chip mill for Cortez Byrd in Brookhaven, Mississippi. One of the terms was that "[a]ll claims or disputes between the Contractor and the Owner arising out [of] or relating to the Contract, or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise." App. 52. The agreement went on to provide that "[t]he award rendered by the arbitrator or arbitrators shall be final, and judgement may be entered upon it in accordance with applicable law in any court having jurisdiction thereof," ibid.; that the agreement to arbitrate "shall be specifically enforceable under applicable law in any court having jurisdiction thereof," ibid.; and that the law of the place where the project was located, Mississippi, governed, id., at 60; 169 F.3d 693, 694 (CAll 1999).After a dispute arose, Harbert invoked the agreement by a filing with the Atlanta office of the American Arbitration Association, which conducted arbitration in November 1997196in Birmingham, Alabama. The next month, the arbitration panel issued an award in favor of Harbert. Ibid.In January 1998, Cortez Byrd filed a complaint in the United States District Court for the Southern District of Mississippi seeking to vacate or modify the arbitration award, which Harbert then sought to confirm by filing this action seven days later in the Northern District of Alabama. When Cortez Byrd moved to dismiss, transfer, or stay the Alabama action, the Alabama District Court denied the motion, concluding that venue was proper only in the Northern District of Alabama, and entering judgment for Harbert for $274,256.90 plus interest and costs. Ibid.The Court of Appeals for the Eleventh Circuit affirmed.It held itself bound by pre-1981 Fifth Circuit precedent, cf. Bonner v. Prichard, 661 F.2d 1206, 1209 (CAll 1981), to the effect that under the Act's venue provisions, 9 U. S. C. §§ 9-11, venue for motions to confirm, vacate, or modify awards was exclusively in the district in which the arbitration award was made. 169 F. 3d, at 694; Naples v. Prepakt Concrete Co., 490 F.2d 182, 184 (CA5), cert. denied, 419 U. S. 843 (1974). The arbitration here having been held in Birmingham, the rule as so construed limited venue to the Northern District of Alabama.We granted certiorari, 527 U. S. 1062 (1999), to resolve a split among the Courts of Appeals over the permissive or mandatory character of the FAA's venue provisions. Compare In re VMS Securities Litigation, 21 F.3d 139, 144-145 (CA7 1994) (§§ 9 and 10 permissive); Smiga v. Dean Witter Reynolds, Inc., 766 F.2d 698, 706 (CA2 1985), cert. denied, 475 U. S. 1067 (1986) (§ 9 permissive); Sutter Corp. v. P & P Indus., Inc., 125 F.3d 914, 918-920 (CA5 1997) (§§ 9 and 10 permissive); P & P Indus., Inc. v. Sutter Corp., 179 F.3d 861, 869-870 (CAlO 1999) (§§ 9 and 10 permissive); Apex Plumbing Supply, Inc. v. U. S. Supply Co., 142 F.3d 188, 192 (CA4 1998) (§ 9 permissive); Nordin v. Nutri/System, Inc., 897 F.2d 339, 344 (CA8 1990) (§ 9 permissive), with Central197Valley Typographical Union No . .1,6 v. McClatchy Newspapers, 762 F.2d 741, 744 (GA9 1985) (§ 10 mandatory); Island Creek Coal Sales Co. v. Gainesville, 729 F.2d 1046, 10491050 (GA6 1984) (§ 9 mandatory); Sunshine Beauty Supplies, Inc. v. United States District Court, Central Dist. of Cal., 872 F.2d 310,312 (GA9 1989) (§§ 9 and 10 mandatory); United States ex rel. Chicago Bridge & Iron Co. v. Ets-Hokin Corp., 397 F.2d 935, 939 (GA9 1968) (§ 10 mandatory). We reverse.IISection 9 of the FAA governs venue for the confirmation of arbitration awards:"If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made." 9 U. S. G. §9.Section 10(a), governing motions to vacate arbitration awards, provides that"the United States court in and for the district wherein the [arbitration] award was made may make an order vacating the award upon the application of any party to the arbitration [in any of five enumerated situations]."And under § 11, on modification or correction,"the United States court in and for the district wherein the award was made may make an order modifying or198correcting the award upon the application of any party to the arbitration."The precise issue raised in the District Court was whether venue for Cortez Byrd's motion under §§ 10 and 11 was properly laid in the southern district of Mississippi, within which the contract was performed. It was clearly proper under the general venue statute, which provides, among other things, for venue in a diversity action in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated." 28 U. s. C. § 1391(a)(2). If §§ 10 and 11 are permissive and thus supplement, but do not supplant, the general provision, Cortez Byrd's motion to vacate or modify was properly filed in Mississippi, and under principles of deference to the court of first filing, the Alabama court should have considered staying its hand. Cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U. S. 180, 185 (1952); Landis v. North American Co., 299 U. S. 248, 254 (1936); 5A C. Wright & A. Miller, Federal Practice and Procedure § 1360 (1990). But if §§ 10 and 11 are restrictive, there was no Mississippi venue for Cortez Byrd's action, and the Northern District of Alabama correctly proceeded with the litigation to confirm. Although § 9 is not directly implicated in this action, since venue for Harbert's motion to confirm was proper in the northern district of Alabama under either a restrictive or a permissive reading of § 9, the three venue sections of the FAA are best analyzed together, owing to their contemporaneous enactment and the similarity of their pertinent language.Enlightenment will not come merely from parsing the language, which is less clear than either party contends. Although "may" could be read as permissive in each section, as Cortez Byrd argues, the mere use of "may" is not necessarily conclusive of congressional intent to provide for a permissive or discretionary authority. United States v. Rodgers, 461 U. S. 677, 706 (1983) ("The word 'may,' when used in a stat-199ute, usually implies some degree of discretion[, but] [t]his common-sense principle of statutory construction ... can be defeated by indications of legislative intent to the contrary or by obvious inferences from the structure and purpose of the statute" (footnote and citations omitted)); Citizens & Southern Nat. Bank v. Bougas, 434 U. S. 35, 38 (1977). Certainly the warning flag is up in this instance. While Cortez Byrd points to clearly mandatory language in other parts of the Act as some indication that "may" was used in a permissive sense, cf. 9 U. S. C. §§ 2, 12, Harbert calls attention to a contrary clue in even more obviously permissive language elsewhere in the Act. See § 4 ("A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28 ... "1). Each party has a point, but neither point is conclusive. The answer is not to be had from comparing phrases.Statutory history provides a better lesson, though, which is confirmed by following out the practical consequences of Harbert's position. When the FAA was enacted in 1925, it appeared against the backdrop of a considerably more restrictive general venue statute than the one current today. At the time, the practical effect of 28 U. S. C. § 112(a) was that a civil suit could usually be brought only in the district in which the defendant resided. See 28 U. S. C. § 112(a) (1926 ed.).2 The statute's restrictive application was all the1 The original version of § 4 referred to "the judicial code at law," rather than Title 28. See United States Arbitration Act, 43 Stat. 883.2 "[E]xcept as provided in sections 113 to 118 of this title, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." 28 U. S. C. § 112(a) (1926 ed.). The provision allowing suits in a diversity action in the district in which the plaintiff resided was of limited effect,200more pronounced due to the courts' general inhospitality to forum selection clauses, see The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, 9-10 (1972). Hence, even if an arbitration agreement expressly permitted action to be brought in the district in which arbitration had been conducted, the agreement would probably prove to be vain. The enactment of the special venue provisions in the FAA thus had an obviously liberalizing effect, undiminished by any suggestion, textual or otherwise, that Congress meant simultaneously to foreclose a suit where the defendant resided. Such a consequence would have been as inexplicable in 1925 as it would be passing strange 75 years later. The most convenient forum for a defendant is normally the forum of residence, and it would take a very powerful reason ever to suggest that Congress would have meant to eliminate that venue for postarbitration disputes.The virtue of the liberalizing nonrestrictive view of the provisions for venue in the district of arbitration is confirmed by another obviously liberalizing venue provision of the Act, which in § 9 authorizes a binding agreement selecting a forum for confirming an arbitration award. Since any forum selection agreement must coexist with §§ 10 and 11, one needs to ask how they would work together if §§ 10 and 11 meant that an order vacating or modifying an arbitration award could be obtained only in the district where the award was made. The consequence would be that a proceeding to confirm the award begun in a forum previously selected by agreement of the parties (but outside the district of the arbitration) would need to be held in abeyance if the responding party objected. The objecting party would then have to return to the district of the arbitration to begin a separateas restrictive views of personal jurisdiction meant that it was often difficult to sue a defendant outside the district of his residence. Cf. International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945) (requiring that a defendant have minimum contacts with a forum to be subject to its judgment).201proceeding to modify or vacate the arbitration award, and if the award withstood attack, the parties would move back to the previously selected forum for the confirming order originally sought. Harbert, naturally, is far from endorsing anything of the sort and contends that a court with venue to confirm under a § 9 forum selection clause would also have venue under a later filed motion under § 10. But the contention boils down to denying the logic of Harbert's own position. The regime we have described would follow from adopting that position, and the Congress simply cannot be tagged with such a taste for the bizarre.Nothing, indeed, would be more clearly at odds with both the FAA's "statutory policy of rapid and unobstructed enforcement of arbitration agreements," Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 23 (1983), or with the desired flexibility of parties in choosing a site for arbitration. Although the location of the arbitration may well be the residence of one of the parties, or have some other connection to a contract at issue, in many cases the site will have no relation whatsoever to the parties or the dispute. The parties may be willing to arbitrate in an inconvenient forum, say, for the convenience of the arbitrators, or to get a panel with special knowledge or experience, or as part of some compromise, but they might well be less willing to pick such a location if any future court proceedings had to be held there. Flexibility to make such practical choices, then, could well be inhibited by a venue rule mandating the same inconvenient venue if someone later sought to vacate or modify the award.A restrictive interpretation would also place § 3 and §§ 9-11 of the FAA in needless tension, which could be resolved only by disrupting existing precedent of this Court. Section 3 provides that any court in which an action "referable to arbitration under an agreement in writing" is pending "shall on application of one of the parties stay the trial of the action until such arbitration has been had in accord-202ance with the terms of the agreement." 9 U. S. C. § 3. If an arbitration were then held outside the district of that litigation, under a restrictive reading of §§ 9-11 a subsequent proceeding to confirm, modify, or set aside the arbitration award could not be brought in the district of the original litigation (unless that also happened to be the chosen venue in a forum selection agreement). We have, however, previously held that the court with the power to stay the action under § 3 has the further power to confirm any ensuing arbitration award. Marine Transit Corp. v. Dreyfus, 284 U. S. 263, 275-276 (1932) ("We do not conceive it to be open to question that, where the court has authority under the statute ... to make an order for arbitration, the court also has authority to confirm the award or to set it aside for irregularity, fraud, ultra vires or other defect"). Harbert in effect concedes this point, acknowledging that "the court entering a stay order under § 3 retains jurisdiction over the proceeding and does not 'lose venue.'" Brief for Respondent 29. But that concession saving our precedent still fails to explain why Congress would have wanted to allow venue liberally where motions to confirm, vacate, or modify were brought as subsequent stages of actions antedating the arbitration, but would have wanted a different rule when arbitration was not preceded by a suit between the parties.Finally, Harbert's interpretation would create anomalous results in the aftermath of arbitrations held abroad. Sections 204, 207, and 302 of the FAA together provide for liberal choice of venue for actions to confirm awards subject to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the 1975 Inter-American Convention on International Commercial Arbitration.3 93 Section 204 provides for venue in actions under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards "in any such court in which save for the arbitration agreement an action or proceeding with respect to the controversy ... could be brought, or in such court for the district and division which embraces the place designated in the agreement as the place of arbitration." Section 207 states that "any party203u. S. C. §§ 204, 207, 302. But reading §§ 9-11 to restrict venue to the site of the arbitration would preclude any action under the FAA in courts of the United States to confirm, modify, or vacate awards rendered in foreign arbitrations not covered by either convention. Cf.4 1. MacNeil, R. Speidel, & T. Stipanowich, Federal Arbitration Law § 44.9.1.8 (1995) (discussing difficulties in enforcing foreign arbitrations held in nonsignatory states). Although such actions would not necessarily be barred for lack of jurisdiction, they would be defeated by restrictions on venue, and anomalies like that are to be avoided when they can be. True, "[t]here have been, and perhaps there still are, occasional gaps in the venue laws, [but] Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other. Thus, in construing venue statutes it is reasonable to prefer the construction that avoids leaving such a gap." Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U. S. 706, 710, n. 8 (1972); cf. Scherk v. Alberto-Culver Co., 417 U. S. 506, 516-517 (1974) (noting that "[a] contractual provision specifying in advance the forum in which disputes shall be litigated and the law to be applied is ... an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction," and that "[a] parochial refusal by the courts of one country to enforce an international arbitration agreement would not only frustrate these purposes, but would invite unseemly and mutually destructive jockeying by the parties to secure tactical litigation advantages").Attention to practical consequences thus points away from the restrictive reading of §§ 9-11 and confirms the view that the liberalizing effect of the provisions in the day of their enactment was meant to endure through treating them asto the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award." Section 302 applies these provisions to actions brought under the Inter-American Convention. Sections 204 and 207 were added to the FAA in 1970; § 302 was added in 1990.204permitting, not limiting, venue choice today. As against this reasoning, specific to the history and function of a statute addressing venue where arbitration is concerned, Harbert's citations of cases construing other special venue provisions are beside the point. We found, for example, that Congress had a restrictive intent as to venue in patent cases, see Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227-228 (1957); Stonite Products Co. v. Melvin Lloyd Co., 315 U. S. 561, 565-566 (1942), a restrictive intent for the sake of protecting national banks when dealing with venue for litigation against them, see Citizens & Southern Nat. Bank v. Bougas, 434 U. S., at 44, and a restrictive intent as to the geographic reach of Title VII, as evidenced by the lack of extraterritorial venue and other enforcement mechanisms in the statute, see EEOC v. Arabian American Oil Co., 499 U. S. 244, 256 (1991). But the authority of these cases is not that special venue statutes are deemed to be restrictive; they simply show that analysis of special venue provisions must be specific to the statute. With that we agree in holding the permissive view of FAA venue provisions entitled to prevail.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 | OCTOBER TERM, 1999SyllabusCORTEZ BYRD CHIPS, INC. v. BILL HARBERT CONSTRUCTION CO., A DIVISION OF BILL HARBERT INTERNATIONAL, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 98-1960. Argued January 10, 2000-Decided March 21, 2000Petitioner Cortez Byrd Chips, Inc., and respondent Bill Harbert Construction Company agreed, inter alia, that any disputes arising from Harbert's construction of a Mississippi mill for Cortez Byrd would be decided by arbitration. When such a dispute arose, arbitration was conducted in Alabama and Harbert received an award. Cortez Byrd sought to vacate or modify the award in the Federal District Court for the Southern District of Mississippi, where the contract was performed; and seven days later Harbert sought to confirm the award in the Northern District of Alabama. The latter court refused to dismiss, transfer, or stay its action, concluding that venue was proper only there, and it entered judgment for Harbert. The Eleventh Circuit held that, under the Federal Arbitration Act (FAA), venue for motions to confirm, vacate, or modify awards was exclusively in the district where the arbitration award was made, and thus venue here was limited to the Alabama court.Held: The FAA's venue provisions are permissive, allowing a motion to confirm, vacate, or modify to be brought either in the district where the award was made or in any district proper under the general venue statute. Pp. 197-204.(a) Cortez Byrd's Mississippi motion was clearly proper as a diversity action under the general venue statute, 28 U. S. C. § 1391(a)(2), because it was filed where the contract was performed. However, the FAA provides that upon motion of an arbitration party, the federal district court where the arbitration award was made "may" vacate, 9 U. S. C. § 10, or "may" modify or correct, § 11, the award. If these provisions are restrictive, supplanting rather than supplementing the general venue statute, there was no Mississippi venue for Cortez Byrd's action. Owing to their contemporaneous enactment and similar language, §§ 10 and 11 are best analyzed together with § 9, which permits parties to select the venue for confirmation of an award and provides that, in the absence of an agreement, venue lies in the federal court for the district where the award was made. Pp. 197-198.(b) Parsing the language of §§ 9-11 does not answer the question whether the provisions are restrictive or permissive, for there is lan-194Syllabusguage supporting both views. However, the history and function of the provisions confirm that they were meant to expand, not limit, venue choice. The FAA was enacted in 1925 against the backdrop of a considerably more restrictive general venue statute than today's. The 1925 general venue statute effectively limited civil suits to the district where the defendant resided, and courts did not favor forum selection clauses. The FAA's venue provisions had an obviously liberalizing effect, undiminished by any suggestion that Congress meant simultaneously to foreclose a suit where the defendant resided. That is normally a defendant's most convenient forum, and it would take a very powerful reason ever to suggest that Congress meant to eliminate such a venue for postarbitration disputes. This view is confirmed by the obviously liberalizing § 9, which permits forum selection agreements. Were §§ 10 and 11 construed restrictively, a proceeding to confirm an award begun in a selected forum would be held in abeyance while an objecting party returned to the district of arbitration to modify or vacate the award. Were that action unsuccessful, the parties would then return to the previously selected forum for the confirming order originally sought. Nothing could be more clearly at odds with the FAA's policy of rapid and unobstructed enforcement of arbitration agreements or with the desired flexibility of parties in choosing an arbitration site. A restrictive interpretation would also place § 3-which permits a court to stay a proceeding referable to arbitration pending such arbitration-and §§ 9-11 in needless tension, for a court with the power to stay an action under § 3 also has the power to confirm any ensuing arbitration award, Marine Transit Corp. v. Dreyfus, 284 U. S. 263, 275-276. Harbert's interpretation would also create anomalous results in the aftermath of arbitrations held abroad. Against this reasoning, specific to the FAA's history and function, Harbert's citations to cases construing other special venue provisions as restrictive, see, e. g., Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227-228, are beside the point. Their authority is not that special venue statutes are restrictive, but that analysis of special venue provisions must be specific to the statute in question. Pp. 198-204.169 F.3d 693, reversed and remanded.SOUTER, J., delivered the opinion for a unanimous Court.Daniel H. Bromberg argued the cause for petitioner.With him on the briefs were John L. Maxey II and John F. Hawkins.195Full Text of Opinion |
317 | 1962_150 | MR. JUSTICE GOLDBERG delivered the opinion of the Court.We deal here today with the question, of great importance to the public and the financial community, of whether and to what extent the federal antitrust laws apply to securities exchanges regulated by the Securities Exchange Act of 1934. More particularly, the question Page 373 U. S. 343 is whether the New York Stock Exchange is to be held liable to a nonmember broker-dealer under the antitrust laws, or regarded as impliedly immune therefrom when, pursuant to rules the Exchange has adopted under the Securities Exchange Act of 1934, it orders a number of its members to remove private direct telephone wire connections previously in operation between their offices and those of the nonmember without giving the nonmember notice, assigning him any reason for the action, or affording him an opportunity to be heard.IThe facts material to resolution of this question are not in dispute. Harold J. Silver, who died during the pendency of this action, entered the securities business in Dallas, Texas, in 1955, by establishing the predecessor of petitioner Municipal Securities (Municipal) to deal primarily in municipal bonds. The business of Municipal having increased steadily, Silver, in June, 1958, established petitioner Municipal Securities, Inc. (Municipal, Inc.), to trade in corporate over the counter securities. Both firms are registered broker-dealers and members of the National Association of Securities Dealers, Inc. (NASD); neither is a member of the respondent Exchange.Instantaneous communication with firms in the mainstream of the securities business is of great significance to a broker-dealer not a member of the Exchange, and Silver took steps to see that this was established for his firms. Municipal obtained direct private telephone wire connections with the municipal bond departments of a number of securities firms (three of which were members of the Exchange) and banks, and Municipal, Inc., arranged for private wires to the corporate securities trading departments of 10 member firms of the Exchange, as well as to the trading desks of a number of nonmember firms. Page 373 U. S. 344Pursuant to the requirements of the Exchange's rules, all but one of the member firms which had granted private wires to Municipal, Inc., applied to the Exchange for approval of the connections. [Footnote 1] During the summer of 1958, the Exchange granted "temporary approval" for these, as well as for a direct teletype connection to a member firm in New York City and for stock ticker service to be furnished to petitioners directly from the floor of the Exchange.On February 12, 1959, without prior notice to Silver, his firms, or anyone connected with them, the Exchange's Department of Member Firms decided to disapprove the private wire and related applications. Notice was sent to the member firms involved, instructing them to discontinue the wires, a directive with which compliance was required by the Exchange's Constitution and rules. These firms, in turn, notified Silver that the private wires would have to be discontinued, and the Exchange advised him directly of the discontinuance of the stock ticker service. The wires and ticker were all removed by the beginning of March. By telephone calls, letters, and a personal trip to New York, Silver sought an explanation from the Exchange of the reason for its decision, but was repeatedly told it was the policy of the Exchange not to disclose the reasons for such action. [Footnote 2]Petitioners contend that their volume of business dropped substantially thereafter, and that their profits fell, due to a combination of forces all stemming from the Page 373 U. S. 345 removal of the private wires -- their consequent inability to obtain quotations quickly, the inconvenience to other traders in calling petitioners, and the stigma attaching to the disapproval. As a result of this change in fortunes, petitioners contend, Municipal, Inc., soon ceased functioning as an operating business organization, and Municipal has remained in business only on a greatly diminished scale.The present litigation was commenced by Silver as proprietor of Municipal and by Municipal, Inc., against the Exchange in April, 1959, in the Southern District of New York. [Footnote 3] Three causes of action were asserted. The first, seeking an injunction and treble damages, [Footnote 4] alleged that the Exchange had, in violation of §§ 1 and 2 of the Sherman Act, conspired with its member firms to deprive petitioners of their private wire connections and stock ticker service. The second alleged that the Exchange had tortiously induced its member firms to breach their contracts for wire connections with petitioners, and the third asserted that the Exchange's action constituted a tort of intentional and wrongful harm inflicted without reasonable cause.Petitioners moved for summary judgment on the antitrust claim, and for an accompanying permanent injunction against the Exchange's coercion of its members into refusing to provide private wire connections and against the Exchange's refusal to reinstate the stock ticker service. The district judge, after considering the respective affidavits of the parties, granted summary judgment and a permanent injunction as to the private wire connections, 196 F. Supp. 209, holding that the antitrust Page 373 U. S. 346 laws applied to the Exchange, and that its directive and the ensuing compliance by its members constituted a collective refusal to continue the wires, and was a per se violation of § 1 of the Sherman Act. The judge so held on the basis that, although the Exchange had the power to regulate the conduct of its members in dealing with listed securities, its members' relations with nonmembers with regard to over the counter securities were not sufficiently germane to the fulfillment of its duties of self-regulation under the Securities Exchange Act to warrant its being excused from having to answer for restraints of trade such as occurred here by removal of the private wires. He left the issues of treble damages and costs to a later trial. With reference to the stock ticker service, the judge held that there were triable issues of fact as to whether the Exchange's action could be considered to have been the concerted action of its members, and as to whether, if the Exchange was to be regarded as having acted by itself, any violation of § 2 of the Sherman Act had occurred. He therefore denied summary judgment as to that aspect of petitioners' claims.On the Exchange's appeal from the grant of partial summary judgment, the United States Court of Appeals for the Second Circuit reversed over the dissent of one judge. 302 F.2d 714. The court held that the Securities Exchange Act"gives the Commission and the Exchange disciplinary powers over members of the Exchange with respect to their transactions in over the counter securities, and that the policy of the statute requires that the Exchange exercise these powers fully."Id. at 720. This meant that"the action of the Exchange in bringing about the cancellation of the private wire connections . . . was within the general scope of the authority of the Exchange as defined by the 1934 Act,"id. at 716, and dictated a conclusion that"[t]he Exchange is exempt from the restrictions of the Sherman Act, because it is exercising a Page 373 U. S. 347 power which it is required to exercise by the Securities Exchange Act,"id. at 721. The court, however, did not exclude the possibility that the Exchange might be liable on some other theory, and remanded the case for consideration of petitioners' second and third causes of action.This Court granted certiorari. 371 U.S. 808. What is before us is only so much of the first cause of action as relates to the collective refusal to continue the private wire connections, since petitioners did not attempt to appeal from the denial of summary judgment as to the portion relating to the discontinuance of the stock ticker service. Summary judgment was never sought as to the second and third causes of action; hence, those are also not in issue at the present time.IIThe fundamental issue confronting us is whether the Securities Exchange Act has created a duty of exchange self-regulation so pervasive as to constitute an implied repealer of our antitrust laws, thereby exempting the Exchange from liability in this and similar cases.AIt is plain, to begin with, that removal of the wires by collective action of the Exchange and its members would, had it occurred in a context free from other federal regulation, constitute a per se violation of § 1 of the Sherman Act. The concerted action of the Exchange and its members here was, in simple terms, a group boycott depriving petitioners of a valuable business service which they needed in order to compete effectively as broker-dealers in the over the counter securities market. Fashion Originators' Guild of America v. Federal Trade Comm'n, 312 U. S. 457; Associated Press v. United States, 326 U. S. 1; Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207; Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., Page 373 U. S. 348 364 U. S. 656. Unlike listed securities, there is no central trading place for securities traded over the counter. The market is established by traders in the numerous firms all over the country through a process of constant communication to one another of the latest offers to buy and sell. The private wire connection, which allows communication to occur with a flip of a switch, is an essential part of this process. Without the instantaneously available market information provided by private wire connections, an over the counter dealer is hampered substantially in his crucial endeavor -- to buy, whether it be for customers or on his own account at the lowest quoted price, and sell at the highest quoted price. Without membership in the network of simultaneous communication, the over the counter dealer loses a significant volume of trading with other members of the network which would come to him as a result of his easy accessibility. These important business advantages were taken away from petitioners by the group action of the Exchange and its members. Such "concerted refusals by traders to deal with other traders . . . have long been held to be in the forbidden category," Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. at 359 U. S. 212, of restraints which, "because of their inherent nature or effect . . . injuriously restrained trade," United States v. American Tobacco Co., 221 U. S. 106, 221 U. S. 179. [Footnote 5] Hence, absent any justification derived from the policy of another statute Page 373 U. S. 349 or otherwise, the Exchange acted in violation of the Sherman Act. In this case, however, the presence of another statutory scheme, that of the Securities Exchange Act of 1934, means that such a conclusion is only the beginning, not the end, of inquiry.BThe difficult problem here arises from the need to reconcile pursuit of the antitrust aim of eliminating restraints on competition with the effective operation of a public policy contemplating that securities exchanges will engage in self-regulation which may well have anticompetitive effects in general and in specific applications.The need for statutory regulation of securities exchanges and the nature of the duty of self-regulation imposed by the Securities Exchange Act are properly understood in the context of a consideration of both the economic role played by exchanges and the historical setting of the Act. Stock exchanges perform an important function in the economic life of this country. They serve, first of all, as an indispensable mechanism through which corporate securities can be bought and sold. To corporate enterprise, such a market mechanism is a fundamental element in facilitating the successful marshaling of large aggregations of funds that would otherwise be extremely difficult of access. To the public, the exchanges are an investment channel which promises ready convertibility of stock holdings into cash. The importance Page 373 U. S. 350 of these functions in dollar terms is vast -- in 1962, the New York Stock Exchange, by far the largest of the 14 exchanges which are registered with the Securities and Exchange Commission, had $47.4 billion of transactions in stocks, rights, and warrants (a figure which represented 86% of the total dollar volume on registered exchanges). Report of the Special Study of Securities Markets (1963), c. IB, p. 6. [Footnote 6] Moreover, because trading on the exchanges, in addition to establishing the price level of listed securities, affects securities prices in general, and because such transactions are often regarded as an indicator of our national economic health, the significance of the exchanges in our economy cannot be measured only in terms of the dollar volume of trading. Recognition of the importance of the exchanges' role led the House Committee on Interstate and Foreign Commerce to declare, in its report preceding the enactment of the Securities Exchange Act of 1934, that"The great exchanges of this country, upon which millions of dollars of securities are sold, are affected with a public interest in the same degree as any other great utility."H.R.Rep. No. 1383, 73d Cong., 2d Sess. 15 (1934).The exchanges are, by their nature, bodies with a limited number of members, each of which plays a certain role in the carrying out of an exchange's activities. The limited-entry feature of exchanges led historically to their being Page 373 U. S. 351 treated by the courts as private clubs, Belton v. Hatch, 109 N.Y. 593, 17 N.E. 225 (1888), and to their being given great latitude by the courts in disciplining errant members, see Westwood and Howard, Self-Government in the Securities Business, 17 Law and Contemp.Prob. 518-525 (1952). As exchanges became a more and more important element in our Nation's economic and financial system, however, the private club analogy became increasingly inapposite, and the ungoverned self-regulation became more and more obviously inadequate, with acceleratingly grave consequences. This impotency ultimately led to the enactment of the 1934 Act. The House Committee Report summed up the long-developing problem in discussing the general purposes of the bill:"The fundamental fact behind the necessity for this bill is that the leaders of private business, whether because of inertia, pressure of vested interests, lack of organization, or otherwise, have not, since the war, been able to act to protect themselves by compelling a continuous and orderly program of change in methods and standards of doing business to match the degree to which the economic system has itself been constantly changing. . . . The repetition in the summer of 1933 of the blindness and abuses of 1929 has convinced a patient public that enlightened self-interest in private leadership is not sufficiently powerful to effect the necessary changes alone -- that private leadership seeking to make changes must be given Government help and protection."H.R.Rep. No. 1383, supra, at 3.It was, therefore, the combination of the enormous growth in the power and impact of exchanges in our economy, and their inability and unwillingness to curb abuses which had increasingly grave implications because of this growth, that moved Congress to enact the Securities Exchange Act Page 373 U. S. 352 of 1934. S.Rep. No. 792, 73d Cong., 2d Sess. 2-5 (1934); H.R.Rep. No. 1383, supra, at 2-5.The pattern of governmental entry, however, was by no means one of total displacement of the exchanges' traditional process of self-regulation. The intention was, rather, as MR. JUSTICE DOUGLAS said while Chairman of the SEC, one of"letting the exchanges take the leadership with Government playing a residual role. Government would keep the shotgun, so to speak, behind the door, loaded, well oiled, cleaned, ready for use, but with the hope it would never have to be used."Douglas, Democracy and Finance (Allen ed. 1940), 82. Thus, the Senate Committee Report stressed that"the initiative and responsibility for promulgating regulations pertaining to the administration of their ordinary affairs remain with the exchanges themselves. It is only where they fail adequately to provide protection to investors that the Commission is authorized to step in and compel them to do so."S.Rep. No. 792, supra, at 13. The House Committee Report added the hope that the bill would give the exchanges sufficient power to reform themselves without intervention by the Commission. H.R.Rep. No. 1383, supra, at 15. See also 2 Loss, Securities Regulation (2d ed. 1961), 1175-1178, 1180-1182.Thus arose the federally mandated duty of self-policing by exchanges. Instead of giving the Commission the power to curb specific instances of abuse, the Act placed in the exchanges a duty to register with the Commission, § 5, 15 U.S.C. § 78e, and decreed that registration could not be granted unless the exchange submitted copies of its rules, § 6(a)(3), 15 U.S.C. § 78f(a)(3), and unless such rules were "just and adequate to insure fair dealing and to protect investors," § 6(d), 15 U.S.C. § 78f(d). The general dimensions of the duty of self-regulation are suggested by § 19(b) of the Act, 15 U.S.C. § 78s(b), which gives the Commission power to order changes in exchange Page 373 U. S. 353 rules respecting a number of subjects, which are set forth in the margin. [Footnote 7]One aspect of the statutorily imposed duty of self-regulation is the obligation to formulate rules governing the conduct of exchange members. The Act specifically requires that registration cannot be granted"unless the rules of the exchange include provision for the expulsion, suspension, or disciplining of a member for conduct or proceeding inconsistent with just and equitable principles of trade . . . ,"§ 6(b), 15 U.S.C. § 78f(b). In addition, the general requirement of § 6(d) that an exchange's rules be "just and adequate to insure fair dealing and to protect investors" has obvious relevance to the area of rules regulating the conduct of an exchange's members.The § 6(b) and § 6(d) duties, taken together, have the broadest implications in relation to the present problem, for members inevitably trade on the over the counter market in addition to dealing in listed securities, [Footnote 8] and Page 373 U. S. 354 such trading inexorably brings contact and dealings with nonmember firms which deal in or specialize in over the counter securities. It is no accident that the Exchange's Constitution and rules are permeated with instances of regulation of members' relationships with nonmembers including nonmember broker-dealers. [Footnote 9] A member's purchase of unlisted securities for itself or on behalf of its customer from a boiler-shop operation [Footnote 10] creates an obvious Page 373 U. S. 355 danger of loss to the principal in the transaction, and sale of securities to a nonmember insufficiently capitalized to protect customers' rights creates similar risks. In addition to the potential financial injury to the investing public and Exchange members that is inherent in these transactions, as well as in dealings with nonmembers who are unreliable for any other reason, all such intercourse carries with it the gravest danger of engendering in the public a loss of confidence in the Exchange and its members, a kind of damage which can significantly impair fulfillment of the Exchange's function in our economy. Rules which regulate Exchange members' doing of business with nonmembers in the over the counter market are therefore very much pertinent to the aims of self-regulation under the 1934 Act. Transactions with nonmembers under the circumstances mentioned can only be described as "inconsistent with just and equitable principles of trade," and rules regulating such dealing are indeed "just and adequate to insure fair dealing and to protect investors."The Exchange's constitutional provision and rules relating to private wire connections [Footnote 11] are unquestionably part Page 373 U. S. 356 of this fulfillment of the § 6(b) and § 6(d) duties, for such wires between members and nonmembers facilitate trading in and exchange of information about unlisted securities, and such contact with an unreliable nonmember not only may further his business undesirably, but may injure the member or the member's customer on whose behalf the contract is made, and ultimately imperil the future status of the Exchange by sapping public confidence. In light of the important role of exchanges in our economy and the 1934 Act's design of giving the exchanges a major part in curbing abuses by obligating them to regulate themselves, it appears conclusively -- contrary to the District Court's conclusion -- that the rules applied in the present case are germane to performance of the duty, implied by § 6(b) and § 6(d), to have rules governing members' transactions and relationships with nonmembers. The Exchange's enforcement of such rules inevitably affects the nonmember involved, often (as here) far more seriously than it affects the members in question. The sweeping of the nonmembers into the currents of the Exchange's process of self-regulation is therefore unavoidable; the case cannot be disposed of by holding, as the Page 373 U. S. 357 district judge did, that the substantive act of regulation engaged in here was outside the boundaries of the public policy established by the Securities Exchange Act of 1934.CBut it does not follow that the case can be disposed of, as the Court of Appeals did, by holding that, since the Exchange has a general power to adopt rules governing its members' relations with nonmembers, particular applications of such rules are therefore outside the purview of the antitrust laws. Contrary to the conclusions reached by the courts below, the proper approach to this case, in our view, is an analysis which reconciles the operation of both statutory schemes with one another, rather than holding one completely ousted.The Securities Exchange Act contains no express exemption from the antitrust laws, or, for that matter, from any other statute. This means that any repealer of the antitrust laws must be discerned as a matter of implication, and "[i]t is a cardinal principle of construction that repeals by implication are not favored." United States v. Borden Co., 308 U. S. 188, 308 U. S. 198; see Georgia v. Pennsylvania R. Co., 324 U. S. 439, 324 U. S. 456-457; California v. Federal Power Comm'n, 369 U. S. 482, 369 U. S. 485. Repeal is to be regarded as implied only if necessary to make the Securities Exchange Act work, and, even then, only to the minimum extent necessary. This is the guiding principle to reconciliation of the two statutory schemes.Although the Act gives to the Securities and Exchange Commission the power to request exchanges to make changes in their rules, § 19(b), 15 U.S.C. § 78s(b), and impliedly, therefore, to disapprove any rules adopted by an exchange, see also § 6(a)(4), 15 U.S.C. § 78f(a)(4), it does not give the Commission jurisdiction to review particular instances of enforcement of exchange rules. See 2 Loss, op. cit. supra, at 1178; Westwood and Page 373 U. S. 358 Howard, supra, 17 Law & Contemp.Prob. at 525. This aspect of the statute, for one thing, obviates any need to consider whether petitioners were required to resort to the Commission for relief before coming into court. Compare Georgia v. Pennsylvania R. Co., 324 U.S. at 324 U. S. 455. Moreover, the Commission's lack of jurisdiction over particular applications of exchange rules means that the question of antitrust exemption does not involve any problem of conflict or coextensiveness of coverage with the agency's regulatory power. See Georgia v. Pennsylvania R. Co., supra; United States v. Radio Corp. of America, 358 U. S. 334; California v. Federal Power Comm'n, supra; Pan American World Airways, Inc. v. United States, 371 U. S. 296. [Footnote 12] The issue is only that of the extent to which the character and objectives of the duty of exchange self-regulation contemplated by the Securities Exchange Act are incompatible with the maintenance of an antitrust action. Compare Maryland & Virginia Milk Producers Ass'n v. United States, 362 U. S. 458.The absence of Commission jurisdiction, besides defining the limits of the inquiry, contributes to its solution. There is nothing built into the regulatory scheme which performs the antitrust function of insuring that an exchange will not in some cases apply its rules so as to do injury to competition which cannot be justified as furthering legitimate self-regulative ends. By providing Page 373 U. S. 359 no agency check on exchange behavior in particular cases, Congress left the regulatory scheme subject to"the influences of . . . [improper collective action] over which the Commission has no authority, but which, if proven to exist, can only hinder the Commission in the tasks with which it is confronted,"Georgia v. Pennsylvania R. Co., 324 U.S. at 324 U. S. 460; see United States v. Borden Co., 308 U.S. at 308 U. S. 200; Maryland & Virginia Milk Producers Ass'n v. United States, 362 U.S. at 362 U. S. 465-466. Enforcement of exchange rules, particularly those of the New York Stock Exchange, with its immense economic power, may well, in given cases, result in competitive injury to an issuer, a nonmember broker-dealer, or another when the imposition of such injury is not within the scope of the great purposes of the Securities Exchange Act. Such unjustified self-regulatory activity can only diminish public respect for, and confidence in, the integrity and efficacy of the exchange mechanism. Some form of review of exchange self-policing, whether by administrative agency or by the courts, is therefore not at all incompatible with the fulfillment of the aims of the Securities Exchange Act. Only this year, SEC Chairman Cary observed that"some government oversight is warranted -- indeed necessary -- to insure that action in the name of self-regulation is neither discriminatory nor capricious."Cary, Self-Regulation in the Securities Industry, 49 A.B.A.J. 244, 246 (1963). [Footnote 13] Since the antitrust laws serve, among other things, to protect competitive freedom, i.e., the freedom of individual business units to compete unhindered by the Page 373 U. S. 360 group action of others, it follows that the antitrust laws are peculiarly appropriate as a check upon anticompetitive acts of exchanges which conflict with their duty to keep their operations and those of their members honest and viable. Applicability of the antitrust laws, therefore, rests on the need for vindication of their positive aim of insuring competitive freedom. Denial of their applicability would defeat the congressional policy reflected in the antitrust laws without serving the policy of the Securities Exchange Act. Should review of exchange self-regulation be provided through a vehicle other than the antitrust laws, a different case as to antitrust exemption would be presented. See note 12 supra.Yet it is only frank to acknowledge that the absence of power in the Commission to review particular exchange exercises of self-regulation does create problems for the Exchange. The entire public policy of self-regulation, beginning with the idea that the Exchange may set up barriers to membership, contemplates that the Exchange will engage in restraints of trade which might well be unreasonable absent sanction by the Securities Exchange Act. Without the oversight of the Commission to elaborate from time to time on the propriety of various acts of self-regulation, the Exchange is left without guidance and without warning as to what regulative action would be viewed as excessive by an antitrust court possessing power to proceed based upon the considerations enumerated in the preceding paragraphs. But, under the aegis of the rule of reason, traditional antitrust concepts are flexible enough to permit the Exchange sufficient breathing space within which to carry out the mandate of the Securities Exchange Act. See United States v. Terminal R. Ass'n of St. Louis, 224 U. S. 383, 224 U. S. 394-395; Board of Trade of City of Chicago v. United States, 246 U. S. 231, 246 U. S. 238. Although, as we have seen, the statutory scheme of that Act is not sufficiently pervasive to create a total exemption Page 373 U. S. 361 from the antitrust laws, compare Hale and Hale, Competition or Control VI: Application of Antitrust Laws to Regulated Industries, 111 U. of Pa.L.Rev. 46, 48, 57-59 (1962), it is also true that particular instances of exchange self-regulation which fall within the scope and purposes of the Securities Exchange Act may be regarded as justified in answer to the assertion of an antitrust Claim.IIIThe final question here is, therefore, whether the act of self-regulation in this case was so justified. The answer to that question is that it was not, because the collective refusal to continue the private wires occurred under totally unjustifiable circumstances. Notwithstanding their prompt and repeated requests, petitioners were not informed of the charges underlying the decision to invoke the Exchange rules, and were not afforded an appropriate opportunity to explain or refute the charges against them.Given the principle that exchange self-regulation is to be regarded as justified in response to antitrust charges only to the extent necessary to protect the achievement of the aims of the Securities Exchange Act, it is clear that no justification can be offered for self-regulation conducted without provision for some method of telling a protesting nonmember why a rule is being invoked, so as to harm him and allowing him to reply in explanation of his position. No policy reflected in the Securities Exchange Act is, to begin with, served by denial of notice and an opportunity for hearing. Indeed, the aims of the statutory scheme of self-policing -- to protect investors and promote fair dealing -- are defeated when an exchange exercises its tremendous economic power without explaining its basis for acting, for the absence of an obligation to give some form of notice, and, if timely requested, a hearing creates a great danger of perpetration of injury that will damage public confidence in the exchanges. The requirement Page 373 U. S. 362 of such a hearing will, by contrast, help in effectuating antitrust policies by discouraging anticompetitive applications of exchange rules which are not justifiable as within the scope of the purposes of the Securities Exchange Act. In addition to the general impetus to refrain from making unsupportable accusations that is present when it is required that the basis of charges be laid bare, the explanation or rebuttal offered by the nonmember will, in many instances, dissipate the force of the ex parte information upon which an exchange proposes to act. The duty to explain and afford an opportunity to answer will, therefore, be of extremely beneficial effect in keeping exchange action from straying into areas wholly foreign to the purposes of the Securities Exchange Act. And, given the possibility of antitrust liability for anticompetitive acts of self-regulation which fall too far outside the scope of the Exchange Act, the utilization of a notice and hearing procedure, with its inherent check upon unauthorized exchange action, will diminish, rather than enlarge, the likelihood that such liability will be incurred, and hence will not interfere with the Exchange's ability to engage efficaciously in legitimate substantive self-regulation. [Footnote 14] Provision of such a hearing will, moreover, contribute Page 373 U. S. 363 to the effective functioning of the antitrust court, which would be severely impeded in providing the review of exchange action which we deem essential if the exchange could obscure, rather than illuminate, the circumstances under which it has acted. Hence, the affording of procedural safeguards not only will substantively encourage the lessening of anticompetitive behavior outlawed by the Sherman Act, but will allow the antitrust court to perform its function effectively. [Footnote 15] Page 373 U. S. 364Our decision today recognizes that the action here taken by the Exchange would clearly be in violation of the Sherman Act unless justified by reference to the purposes of the Securities Exchange Act, and holds that that statute affords no justification for anticompetitive collective action taken without according fair procedures. [Footnote 16] Congress, in effecting a scheme of self-regulation designed to insure fair dealing, cannot be thought to have sanctioned and protected self-regulative activity when carried out in a fundamentally unfair manner. [Footnote 17] The point is not that the antitrust laws impose the requirement of Page 373 U. S. 365 notice and a hearing here, but, rather that, in acting without according petitioners these safeguards in response to their request, the Exchange has plainly exceeded the scope of its authority under the Securities Exchange Act to engage in self-regulation, and therefore has not even reached that threshold of justification under that statute for what would otherwise be an antitrust violation. Since it is perfectly clear that the Exchange can offer no justification under the Securities Exchange Act for its collective action in denying petitioners the private wire connections without notice and an opportunity for hearing, and that the Exchange has therefore violated § 1 of the Sherman Act, 15 U.S.C. § 1, and is thus liable to petitioners under §§ 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26, there is no occasion for us to pass upon the sufficiency of the reasons which the Exchange later assigned for its action. [Footnote 18] Thus, there is also no need for Page 373 U. S. 366 us to define further whether the interposing of a substantive justification in an antitrust suit brought to challenge a particular enforcement of the rules on its merits is to be governed by a standard of arbitrariness, good faith, reasonableness, or some other measure. It will be time enough to deal with that problem if and when the occasion arises. Experience teaches, however, that the affording of procedural safeguards, which, by their nature, serve to illuminate the underlying facts, in itself often operates to prevent erroneous decisions on the merits from occurring. There is no reason to believe that the experience of the Exchange will be different from that of other institutions, both public and private. The benefits which a guarantee of procedural safeguards brings about are, moreover, of particular importance here. It requires but little appreciation of the extent of the Exchange's economic power, and of what happened in this country during the 1920's and 1930's, to realize how essential it is that the highest ethical standards prevail as to every aspect of the Exchange's activities. What is basically at issue here is whether the type of partnership between government and private enterprise that marks the design of the Securities Exchange Act of 1934 can operate effectively to insure the maintenance of such standards in the long run. Page 373 U. S. 367We have today provided not a brake upon the private partner executing the public policy of self-regulation, but a balance wheel to insure that it can perform this necessary activity in a setting compatible with the objectives of both the antitrust laws and the Securities Exchange Act.The judgment is reversed and remanded for further proceedings consistent with this opinion.It is so ordered | U.S. Supreme CourtSilver v. New York Stock Exchange, 373 U.S. 341 (1963)Silver v. New York Stock ExchangeNo. 150Argued February 25-26, 1963Decided May 20, 1963373 U.S. 341SyllabusPetitioners, two Texas over the counter broker-dealers in securities, who were not members of the New York Stock Exchange, arranged with members of the Exchange in New York City for direct-wire telephone connections which were essential to the conduct of their businesses. The members applied to the Exchange, as required by its rules promulgated under the Securities Exchange Act of 1934, for approval of the connections. Temporary approval was granted and the connections were established; but, without prior notice to petitioners, the applications were denied later, and the connections were discontinued, as required by rules of the Exchange. Allegedly as a result, one of the petitioners was forced out of business and the other's business was greatly diminished. Notwithstanding repeated requests, officials of the Exchange refused to grant petitioners a hearing or even to inform them of the reasons for denial of the applications. Petitioners sued the Exchange and its members in a Federal District Court for treble damages and injunctive relief, claiming that their collective refusal to continue the direct-wire connections violated the Sherman Act.Held: The duty of self-regulation imposed upon the Exchange by the Securities Exchange Act of 1934 did not exempt it from the antitrust laws, nor justify it in denying petitioners the direct-wire connections without the notice and hearing which they requested. Therefore, the Exchange's action in this case violated §1 of the Sherman Act, and the Exchange is liable to petitioners under §§ 4 and 16 of the Clayton Act. Pp. 373 U. S. 342-367.(a) Absent any justification derived from the Securities Exchange Act of 1934 or otherwise, removal of the direct-wire connections by collective action of the Exchange and its members constituted a per se violation of §1 of the Sherman Act, since it was a group boycott depriving petitioners of a valuable business service which Page 373 U. S. 342 they needed in order to compete effectively as broker-dealers in the over the counter securities market. Pp. 373 U. S. 347-349.(b) In the light of the design of the Securities Exchange Act of 1934 to give the exchanges a major part in curbing abuses by self-regulation, the rules applied in the present case were germane to the performance of the duty implied by §§ 6 (b) and 6 (d) to have rules governing members' transactions and relationships with nonmembers. Pp. 373 U. S. 349-357.(c) The statutory scheme of the Securities Exchange Act of 1934 is not sufficiently pervasive to create a total exemption from the antitrust laws, but particular instances of exchange self-regulation which fall within the scope and purposes of the Act may be regarded as justified in answer to the assertion of an antitrust claim. Pp. 373 U. S. 357-361.(d) In denying petitioners the direct-wire connections without according them the notice and hearing which they requested, the Exchange exceeded the scope of its authority under the Securities Exchange Act of 1934 to engage in self-regulation. Therefore, it was not justified in doing what otherwise was an antitrust violation. Pp. 373 U. S. 361-367.302 F.2d 714, reversed. |
318 | 1960_45 | MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The question in these cases is whether the Federal Power Commission has gone beyond the scope of its delegated authority in denying a certificate of public convenience and necessity under § 7(e) of the Natural Gas Act of 1938, 52 Stat. 821, as amended, 15 U.S.C. § 717 et seq. [Footnote 1] The principal respondents [Footnote 2] are Transcontinental Gas Pipe Line Corp. (Transco), a pipeline company Page 365 U. S. 4 engaged in transporting natural gas in interstate commerce, and Consolidated Edison Co. (Con. Ed.), a public utility in New York City which uses gas under its boilers and also sells gas to domestic consumers. In 1957, Con. Ed. contracted to purchase gas from producers in the Normanna and Sejita fields in Texas at 19 1/4 cents per Mcf., the contracts of sale containing a prohibition on resale of the gas by Con. Ed. This transaction is commonly labeled a "direct" sale and, because it does not entail a sale for resale in interstate commerce, is not subject to the Commission's jurisdiction except insofar as § 7 requires the Commission to certificate the transportation of gas pursuant to the sale.Con. Ed. then arranged with Transco for what is called in the record "X-20" service. Under the contract, Transco agreed to transport 50,000 Mcf. daily to Con. Ed. in New York for use under Con. Ed.'s boilers, principally two boilers at Con. Ed.'s Waterside station which were then being fired by coal. Additionally, during a 60-day peak period, Transco agreed to sell 50,000 Mcf. to Con. Ed. from Transco's own reserves without restrictions as to resale. This 60-day supply was designed for use by Con. Ed.'s customers during the winter period, when heating demands were at their highest. Transco sought a certificate of public convenience and necessity for the proposed X-20 service in connection with its plan to conduct a major expansion of its pipeline capacity and storage facilities.Before the hearing examiner, Transco's application was opposed by the FPC staff and groups representing the coal industry. Con. Ed. intervened in favor of Transco's proposal. Transco offered proof that its application met all the conventional tests -- adequate gas reserves, pipeline facilities and market for the gas -- and this showing, with one immaterial exception, has never been challenged. However, the FPC's staff argued vigorously Page 365 U. S. 5 that the public interest would suffer were Transco's petition granted. Among the grounds advanced were that the gas was to be transported for use under industrial boilers, this disposition being an "inferior" use from the standpoint of conserving a valuable natural resource; that authorization of this and similar direct sales to major industrial users would result in preemption of pipeline capacity and gas reserves to the detriment of domestic consumers competing for gas supply; and that the effect of this sale, as well as the resulting increase in direct sales, would effect a general rise in field prices. These contentions were presented as "policy" arguments, and no testimony was taken in support. Con. Ed. contended, in return, that certification was in the public interest, principally because a firm supply of natural gas under the Waterside boilers would reduce the air pollution problem then being aggravated by fly-ash and sulphur dioxide emissions from these boilers. The Waterside station is located near the headquarters building of the United Nations, and Con. Ed. introduced expert testimony indicating that the Waterside boilers were major contributors to the air pollution problem in the area. Respondents also contended that the factors propounded by the FPC's staff were not open for consideration in a § 7 proceeding. The hearing examiner agreed with respondents that his determination was limited to conventional factors, and consequently recommended certification. He qualified his recommendation, however, with a statement that, if he were authorized to consider the policy argument related to the end use of the gas advanced by the FPC staff, he would come to the opposite conclusion. He indicated that respondents' proof concerning the air pollution problem was not sufficiently compelling to overcome this contrary argument.On review before the full FPC, the Commission held that the broad considerations advanced by its staff Page 365 U. S. 6 were cognizable in a § 7 proceeding. The Commission agreed with respondents that the "idea of ameliorating a smoke condition found unpleasant and annoying . . . is an attractive one," but concluded that "more weighty considerations compel the denial of the grant." 21 F.P.C. 138, 142. Respondents sought a rehearing before the Commission, and, upon denial of that petition, 21 F.P.C. 399, appealed to the Court of Appeals. The Court of Appeals reinstated the conclusion of the hearing examiner that the policy considerations advanced by the FPC were outside the scope of a § 7 proceeding. The court relied principally on § 1(b) of the Natural Gas Act, 15 U.S.C. § 717(b), which provides:"The provisions of this chapter shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas."The court also expressed sympathy with respondents' contention that the Commission had given inadequate weight to the air pollution factor, but the holding below does not appear to be based on that ground. 271 F.2d 942.The principal question before this Court, then, is whether Congress intended to preclude the Commission from denying certification on the basis of the policy considerations advanced by its staff. For purposes of analysis, the litigants have grouped these factors into two broad categories. The first has been labeled the "end use" factor, and reflects and Commission's concern that Con. Ed.'s Page 365 U. S. 7 proposed "inferior" use of gas under its industrial boilers would be wasteful of gas committed to the Commission's jurisdiction, and, by the same token, would preempt space in pipelines that might otherwise be used for transportation of gas for superior uses. The second may be called the "price" consideration, and involves the Commission's fear that this sale -- which was executed at a price higher than the maximum fixed by the Commission in the producing districts here involved -- would increase the price of natural gas in the field, thus triggering a rise in the price provisions in other contracts.In light of what this Court has said on prior occasions concerning the term "public convenience and necessity" in analogous statutes, the ready inference is that the Commission has the power to consider the "end use" and "price" factors. For example, in United States v. Detroit & Cleveland Navigation Co., 326 U. S. 236, 326 U. S. 241, the Court concluded that:"The Commission is the guardian of the public interest in determining whether certificates of convenience and necessity shall be granted. For the performance of that function, the Commission has been entrusted with a wide range of discretionary authority. Interstate Commerce Commission v. Parker, 326 U. S. 60. Its function is not only to appraise the facts and to draw inferences from them, but also to bring to bear upon the problem an expert judgment and to determine from its analysis of the total situation on which side of the controversy the public interest lies. Its doubt that the public interest will be adequately served if resumption of service is left to existing carriers is entitled to the same respect as its expert judgment on other complicated transportation problems. . . ."See Interstate Commerce Commission v. Railway Labor Executives Assn., 315 U. S. 373, 315 U. S. 376-377. Page 365 U. S. 8 In fact, in interpreting this very section, we said that "§ 7(e) requires the Commission to evaluate all factors bearing on the public interest." Atlantic Refining Co. v. Public Service Commission, 360 U. S. 378, 360 U. S. 391. (Emphasis added.) However, respondents correctly point out that Congress, in enacting the Natural Gas Act, did not give the Commission comprehensive powers over every incident of gas production, transportation and sale. Rather, Congress was "meticulous" only to invest the Commission with authority over certain aspects of this field, leaving the residue for state regulation. Panhandle Eastern Pipe Line Co. v. Public Service Commission, 332 U. S. 507. Therefore, it is necessary to consider with care whether, despite the accepted meaning of the term "public convenience and necessity," the Commission has trod on forbidden ground in making its decision.End use. No one disputes that natural gas is a wasting resource, and that the necessity for conserving it is paramount. [Footnote 3] As we see it, the question in this case is whether the Commission, through its certification power, may prevent the waste of gas committed to its jurisdiction. One apparent method of preventing waste of gas is to limit the uses to which it may be put, uses for which another more abundant fuel may serve equally well. Thus, the Commission in this case, as it often has in the past, [Footnote 4] has declared that the use of gas under industrial boilers is an "inferior" use, the assumption being that other fuels, particularly coal, are an adequate substitute [Footnote 5] in areas Page 365 U. S. 9 where such other fuels abound. However, respondents, while conceding the premise that gas may be wasted where coal is readily available, argue that Congress has not awarded the Commission any powers over conservation; rather, this authority has been reserved to the States. This contention is based on the legislative history of the Natural Gas Act.When Congress initially enacted the Natural Gas Act in 1938, all the indications were that Congress intended the States to be the primary arbiters of conservation problems. The 1938 Act was based on a 1936 report rendered by the Federal Trade Commission, [Footnote 6] and the section in that report devoted to conservation stresses the powers of state bodies to adopt corrective measures. The final recommendation of the Federal Trade Commission in regard to conservation contemplated primary state authority, with federal agencies being relegated to a reporting function. This recommendation formed the basis for § 11 of the Act as ultimately passed, and that section reveals a secondary role for the Commission in this regard. [Footnote 7] Page 365 U. S. 10However, in 1940, the Commission reported its dissatisfaction with the limited scope of § 7. The 1938 version of § 7 restricted the Commission's jurisdiction to certification of transportation into areas where the market was already being served by another natural gas company; if a pipeline wished to extend service into virgin territory, the Commission had no power to act. The Commission felt that this limitation barred it from considering "the broad social and economic effect of the use of various fuels" in a § 7 proceeding, Kansas Pipe Line & Gas Co., 2 F.P.C. 29, 27, and, in its 1940 Annual Report, the Commission urged that the restriction be deleted in order that conservation considerations might be weighed. The language used by the Commission is particularly relevant to this case:"The Natural Gas Act, as presently drafted, does not enable the Commission to treat fully the serious implications of such a problem. The question should be raised as to whether the proposed use of natural gas would not result in displacing a less valuable fuel Page 365 U. S. 11 and create hardships in the industry already supplying the market, while at the same time rapidly depleting the country's natural gas reserves. Although, for a period of perhaps 20 years, the natural gas could be so priced as to appear to offer an apparent saving in fuel costs, this would mean simply that social costs which must eventually be paid had been ignored.""Careful study of the entire problem may lead to the conclusion that use of natural gas should be restricted by functions, rather than by areas. Thus, it is especially adapted to space and water heating in urban homes and other buildings, and to the various industrial heat processes which require concentration of heat, flexibility of control, and uniformity of results. Industrial uses to which it appears particularly adapted include the treating and annealing of metals, the operation of kilns in the ceramic, cement, and lime industries, the manufacture of glass in its various forms, and use as a raw material in the chemical industry. General use of natural gas under boilers for the production of steam is, however, under most circumstances, of very questionable social economy."20 F.P.C.Ann.Rep. 79 (1940). The Commission implemented its recommendation by submitting to Congress a proposed amendment to § 7 with the restrictive language eliminated, and an amendment substantially similar to the one drafted by the Commission was enacted in 1942. [Footnote 8] During the course of the Page 365 U. S. 12 hearings on the amendment, the Commission reiterated the position it had taken in its 1940 report, Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 5249, 77th Cong., 1st Sess. 82, and the language used by the Committees reporting the bill indicates that the amendment was framed in response to the Commission's complaint. H.R.Rep. No. 1290, 77th Cong., 1st Sess. 3; S.Rep. No. 918, 77th Cong., 2d Sess. 1-2.It is true, of course, that the Committee reports do not set out the Commission's position in haec verba. For Page 365 U. S. 13 example, the pertinent language of the House Committee Report states that:"The bill, as amended, eliminates the objections to the present section 7(c) above mentioned. By this legislation, the present jurisdictional disputes are eliminated, and the door is opened to the consideration by the Commission of the effect of construction and extensions upon the interests of producers of competing fuels and competitive transportation interests. This result is accomplished, moreover, without undue disturbance of existing operating arrangements of natural gas companies. [Footnote 9]"H.R.Rep. No. 1290, supra. Page 365 U. S. 14 Consequently, respondents argue that Congress only authorized the Commission to look at one side of the coin -- the health of the coal industry -- because that is the only point mentioned explicitly. However, this contention does not take adequate account of the position the Commission had consistently pressed upon Congress both prior to and during the hearings on the amendment -- that the use of gas for purposes adequately served by other fuels was undesirable not only because it injured the competing industry, but, what is more important, because it was wasteful to use a fuel in short supply in place of an abundant fuel. See 20 F.P.C.Ann.Rep. 79 (1940). The history of the amendment reveals no voice raised in opposition to the Commission's position, and there is no other indication that Congress was unwilling to give the chief proponent of the amendment anything less than it sought. Thus, it would be curious were we to infer such an intent from the language of the House Committee Report quoted above. Rather, we think it plain the Congress acquiesced in the Commission's position, and the excerpted language signifies acquiescence. It should be noted that this is not the first time this Court has addressed itself to the effect of the 1942 amendment to § 7. See Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591, 320 U. S. 617, note 30, and Federal Power Commission v. East Ohio Gas Co., 338 U. S. 464, 338 U. S. 468-469. And, while it must be conceded that the language pertinent here was not necessary to the decision in either Hope or East Ohio, the clear conclusion of the Court in those cases is directly opposed to respondents' present argument.Respondents, however, vigorously contend that, subsequent to the 1942 amendment, the Commission itself has made statements on occasion which are inconsistent with the Commission's position in this case. In particular, respondents point to an excerpt from the Commission's Page 365 U. S. 15 1944 Report to Congress, entitled The First Five Years Under the Natural Gas Act, where the Commission stated:"In its hearings on certificate cases, under section 7(c) of the act, as amended, the Commission has freely permitted the intervention of representatives of coal, railroad, labor, and other interests concerned with the production or transportation of competing fuels. These interests have presented extensive evidence on the economic, sociological, and technological aspects of fuel competition, and their representatives have strongly urged the Commission either to deny certificates on the general grounds of conservation or to attach restrictions which would severely limit the uses for which natural gas might be sold.""It has been the unanimous view of the Commission that, inasmuch as the Congress had not given it comprehensive powers to deal with the end uses for which natural gas is consumed, and had granted the Commission no authority to regulate rates for the direct sales of natural gas to industry, it was the duty of the Commission not to seek to exercise such authority until the Congress amended the Natural Gas Act to confer on the Commission such specific powers as Congress desired it to exercise."F.P.C., The First Five Years Under the Natural Gas Act 15. This statement was relied on heavily by the Court of Appeals, and it would be idle to contend that the report is irrelevant to the present inquiry. However, it is necessary to note the precise limit of the Commission's admissions. The Commission said that it had not been given "comprehensive" authority to deal with "the end uses for which natural gas is consumed," and that it would not Page 365 U. S. 16 deny certification on that ground alone. [Footnote 10] The Commission did not say that it had no authority over the use to which certificated gas might be put, nor did it say that end use was a factor beyond its power of notice. In view of contemporaneous statements by the Commission which would be inconsistent with the reading respondents press upon us, [Footnote 11] we think that the 1944 report Page 365 U. S. 17 should be construed as admitting only a lack of comprehensive power to formulate a flat rule against direct sales for use under industrial boilers.In this connection, it must be realized that the Commission's powers under § 7 are, by definition, limited. See Koplin, Conservation and Regulation: The Natural Gas Allocation Policy of the Federal Power Commission, 64 Yale L.J. 840, 862. The Commission cannot order a natural gas company to sell gas to users that it favors; [Footnote 12] it can only exercise a veto power over proposed transportation, and it can only do this when a balance of all the circumstances weighs against certification. Moreover, the Commission has no authority over intrastate sales under any section of the Act and, since a large percentage of the gas sold for so-called "inferior" uses is sold within the producing States, [Footnote 13] this restriction further curtails the Commission's power over conservation. In light of this, the Commission's position since the 1942 amendment is both consistent and rational. On the one hand, the Commission has stated that it does have power to consider end use in a § 7 proceeding. On the other hand, the Commission has sought, but has not been awarded, comprehensive authority over all aspects of gas conservation. A most striking example of the Commission's thinking is revealed by its reasons for opposition to H.R. 982, a bill proposed in 1949 which would have declared that:". . . the public interest requires the establishment of, and adherence to, a policy with respect to the Page 365 U. S. 18 transportation of natural gas and the sale thereof in interstate commerce, which will --""(1) promote and safeguard, so far as possible, the national defense;""(2) conserve the reserves of natural gas for utilization which affords the highest social benefits to the public, consistent with reasonable rates and adequate service. [Footnote 14]"The Commission argued against passage on, among others, the following ground:"The 10-point policy would --""* * * *" "(2) Conserve the reserves of natural gas for utilization which affords the highest social benefits to the public, consistent with reasonable rates and adequate service;""This, of course, proposes a limitation on the purposes for which gas may be utilized. In order to be fully effective, it would be necessary to extend the Commission's jurisdiction to intrastate sales, because the great bulk of gas sold for so-called inferior industrial uses is either sold in the field or by distributing companies over which the Commission does not have jurisdiction. The Commission, however, is aware of the problem, and, in certificate cases, it does give consideration to the proposed uses of the gas in question. The Commission believes that, under the present act, it may give proper consideration to this matter in certificate proceedings. [Footnote 15]"In light of this language, it is clear that the Commission fully realizes the distinction between the power it enjoys Page 365 U. S. 19 under § 7 and complete allocation power. [Footnote 16] And we feel that this distinction entirely disposes of those contentions of respondents based on the Commission's purported ambivalent behavior.There is a broader principle here which also stands in opposition to respondents' contentions. When Congress enacted the Natural Gas Act, it was motivated by a desire "to protect consumers against exploitation at the hands of natural gas companies." Sunray Mid-Continent Oil Co. v. Federal Power Commission, 364 U. S. 137, 364 U. S. 147. To that end, Congress "meant to create a comprehensive and effective regulatory scheme." Panhandle Eastern Pipe Line Co. v. Public Service Commission, 332 U. S. 507, 332 U. S. 520. See Public Utilities Commission of Ohio v. United Fuel Gas Co., 317 U. S. 456, 317 U. S. 467. It is true, of course, that Congress did not desire comprehensive federal regulation; much authority was reserved for the States. But it is equally clear that Congress did not desire that an important aspect of this field be left unregulated. See Panhandle Eastern Pipe Line Co. v. Public Service Commission, supra. Therefore, when a dispute arises over whether a given transaction is within the scope of federal or state regulatory authority, we are not inclined to approach the problem negatively, thus raising the possibility that a "no-man's land" will be created. Compare Guss v. Utah Labor Board, 353 U. S. 1. That is to say, in a borderline case where congressional authority is not explicit, we must ask whether state authority can practicably regulate a given areas and, if we Page 365 U. S. 20 find that it cannot, then we are impelled to decide that federal authority governs.In this case, the dispute is over the "economic" waste of gas which has been committed to transportation in interstate commerce outside the producing State. The Commission has not attempted to exert its influence over such "physically" wasteful practices as improper well spacing and the flaring of unused gas which result in the entire loss of gas and are properly of concern to the producing State; nor has the Commission attempted to regulate the "economic" aspects of gas used within the producing State. Respondents contend that, even in this posture, the Commission has usurped the functions of state regulating bodies, but we cannot agree.In the 1936 Federal Trade Commission Report, upon which respondents so heavily rely, there was some mention of control of the end use of gas, and, as we have said, this report was strongly oriented towards state regulation. However, as the Court of Appeals pointed out, the primary emphasis was on physical waste of gas within the producing State, and the reference to end use probably contemplated the use of gas in gasoline extraction and the manufacture of carbon black. 271 F.2d at 947. There is no indication that the Federal Trade Commission or Congress was thinking in terms of state-controlled "economic" conservation of gas committed to interstate commerce. Moreover, it is questionable whether any State could be expected to take the initiative in enforcing this type of "economic" conservation. A producing State might wish to prolong its gas reserves for as long as possible, but producing States have no control over the use to which gas is put in another State. See Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157; Pennsylvania v. West Virginia, 262 U. S. 553; Oklahoma v. Kansas Natural Gas Co., 221 U. S. 229. Consuming States may control the end use of gas, Panhandle Eastern Page 365 U. S. 21 Pipe Line Co. v. Michigan Public Service Commission, 341 U. S. 329, but the deficiencies of this system in the present context are apparent -- unless all States cooperate in enforcing a common regulation, the producer may pick a State which is sufficiently anxious for this scarce resource that it will take gas irrespective of the use. [Footnote 17] Therefore, Page 365 U. S. 22 it appears that, consistent with the congressional purpose of leaving no "attractive gap" in regulation, we must conclude that the "end-use" factor was properly of concern to the Commission. Page 365 U. S. 23Price. As we read the opinion, the Commission's second objection to certification was based on its forecast that this and similar direct sales of gas at unregulated prices higher than those allowed in sales for resale [Footnote 18] would attract gas to the high-bidding direct purchasers, and thus lever upwards field prices both in direct sales and sales for resale.Respondents claim that this "policy" consideration masks the Commission's true purpose in this proceeding, which, according to respondents, is to bar direct sales absolutely, thus forcing all gas transactions into regulated channels. And respondents argue that such an absolute bar runs contrary to the intent of Congress as expressed in § 1(b) of the Natural Gas Act, quoted supra, the section which limits the FPC's jurisdiction to sales for resale in interstate commerce.Were respondents correct in their interpretation of the Commission's action in this case, we would be forced to agree that the Commission had overstepped its bounds. Certainly such action would be contrary to our previous statements that the term "public convenience and necessity" connotes a flexible balancing process, in the course of which all the factors are weighed prior to final determination. United States v. Detroit & Cleveland Navigation Co., supra. [Footnote 19] Indeed, as respondents argue, such a flat rule would be doubly objectionable here because Page 365 U. S. 24 Congress has not given the Commission jurisdiction over direct sales. However, we cannot agree that the Commission propounded an absolute rule in this case. Examination of the opinion reveals recurrent reference to the absence of any one controlling factor; as the Commission stated, "countervailing factors suffice to tip the balance against the grant of the authority requested by Transco." 21 F.P.C. at 141. (Emphasis added.) It is difficult to find any indication of the flat rule mentioned by respondents in language such as this. Furthermore, if there were any lingering doubt on this point, it is dispelled by the fact that the Commission has, on many occasions, held that transportation of gas sold directly to the consumer is in the public interest when the reasons advanced by the applicant have been sufficiently strong. See, e.g., Houston Texas Gas & Oil Corp., 16 F.P.C. 118. On this point, the Commission's actions speak louder than respondents' unsupported allegations. See Northern Natural Gas Co., 15 F.P.C. 1634. [Footnote 20]Respondents also argue that the Commission is opposed to this transaction merely because the underlying sale is a direct sale not subject to the Commission's primary jurisdiction. However, a fair reading of the Commission's opinion as a whole reveals that the Commission did not exalt form over substance in an attempt to aggrandize the scope of its jurisdiction; rather, whenever the Commission discussed the nonjurisdictional nature of this sale, it tied this discussion into an analysis of one or Page 365 U. S. 25 the other of the substantive evils it was seeking to prevent -- "inferior" use or increased prices to consumers generally. [Footnote 21]The question for consideration in this section, therefore, is whether, in a § 7 proceeding, the Commission may consider sales price, or, more accurately, the effect the inflated price charged in one sale will have on future field prices. We have recently answered this question in favor of the Commission's jurisdiction. See Atlantic Refining Co. v. Public Service Commission, supra, at 360 U. S. 391, where we stated that the Commission could decide whether:"[T]he proposed price is not in keeping with the public interest because it is out of line or because its approval might result in a triggering of general price rises. . . . "Page 365 U. S. 26However, respondents point out that the underlying sale in that case was a sale for resale, and thus independently subject to the Commission's jurisdiction. Where such independent jurisdiction does not exist because of the bar in § 1(b), respondents claim that the Commission's power of notice is curtailed.This Court has never been faced with precisely this problem, but on several occasions we have been called upon to consider arguments very similar to the one advanced here. For example, in Colorado Interstate Gas Co. v. Federal Power Commission, 324 U. S. 581, it was held that, in fixing a rate base for the measurement of interstate wholesale rates, the Commission might take into account the value of the pipeline company's production and gathering facilities, even though the Commission had no direct jurisdiction over these facilities because of the bar in § 1(b). The contention which was rejected in Colorado Interstate has a familiar ring in the present context: according to the unsuccessful litigant, when the FPC includes production and gathering facilities in a rate base, "it regulates the production and gathering of natural gas contrary to the provisions of § 1(b) of the Act." Id. at 324 U. S. 600. Similarly, in Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 324 U. S. 635, 324 U. S. 646, it was said in dictum that:"The Commission, while it lacks authority to fix rates for direct industrial sales, may take those rates into consideration when it fixes the rates for interstate wholesale sales which are subject to its jurisdiction."These cases, while not in themselves controlling, indicate at least that respondents' argument is overly broad. However, to decide a particular case, we must return to the consideration discussed in the previous section -- the Act contemplates comprehensive regulation in the public Page 365 U. S. 27 interest, and the critical inquiry is whether Congress intended state or federal authority to govern.In the present case, the Commission was concerned with the effects this certification might have in the future on field prices generally. The Commission was attempting to consider not only the interests of consumers in New York, but those in all States. To be compared with the problem before the Commission are the determinations that a consuming state commission may properly make in exercising authority over a direct sale. Certainly, the consuming State can regulate retail rates at which gas can be sold within the State. E.g., Panhandle Eastern Pipe Line Co. v. Public Service Commission, 332 U. S. 507. This power was recognized at the time the Act was passed, see Powell, Note, Physics and Law -- Commerce in Gas and Electricity, 58 Harv.L.Rev. 1072, and it is clear that Congress excepted federal regulation of direct sales precisely for this reason. See H.R.Rep. No. 709, 75th Cong., 1st Sess. 1-2. But, in this case, the Commission has not objected to the retail rate, and we need not decide whether there are limits on the Commission's power in this hypothetical situation. The very nature of the present problem, entailing as it does considerations that overstep the bounds of any one State, illustrates the improbability that state commissions could or would attempt to deal with it; it seems clear that considerations of this sort are uniquely fitted for federal scrutiny. Particularly relevant in this connection in this Court's decision in Panhandle Eastern Pipe Line Co. v. Public Service Commission, 332 U. S. 507. In that case, it was held that a state commission may regulate retail sales, even though the gas was brought from out-of-state sources. The pipeline company argued that conflicting regulations enforced by different state bodies, particularly regulations concerned with interruption of service, might place it in an Page 365 U. S. 28 untenable position. The Court answered this argument by stating that:"There is no evidence thus far of substantial conflict in either respect, and we do not see that the probability of serious conflict is so strong as to outweigh the vital local interests to which we have referred requiring regulation by the states. Moreover, if such conflict should develop, the matter of interrupting service is one largely related, as appellees say, to transportation, and thus within the jurisdiction of the Federal Power Commission to control, in accommodation of any conflicting interests among various states."Id. at 332 U. S. 523. (Emphasis added.)The point is, as we have stated, that Congress did not desire an "attractive gap" in its regulatory scheme; rather, Congress intended to impose a comprehensive regulatory system on the transportation, production, and sale of this valuable natural resource. Therefore, when we are presented with an attempt by the federal authority to control a problem that is not, by its very nature, one with which state regulatory commissions can be expected to deal, the conclusion is irresistible that Congress desired regulation by federal authority, rather than nonregulation. See Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 232 F.2d 467.Respondents' final argument on this point is that the Commission abused its discretion in denying certification because it took cognizance of facts dehors the record and because it did not pay sufficient attention to the recorded testimony of respondents' expert concerning air pollution. The first objection -- that the Commission erred in going outside the record -- was rejected by the Court of Appeals, and we concur in that conclusion. According to the statute, the Commission is required to determine whether certification is in the "present or future public convenience Page 365 U. S. 29 and necessity." (Emphasis added.) Obedient to this command, the Commission did forecast the future, and concluded that widespread direct sales at high prices would probably result in price increases. Respondents appear to be claiming that the Commission should have adduced testimonial and documentary evidence to the effect that this forecast would come true. However, we do not think that the Commission is so limited in its formulation of policy considerations. Rather, we think that a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency. See Atlantic Refining Co. v. Public Service Commission, supra, at 360 U. S. 391. [Footnote 22] It should also be noted that there has been a considerable showing made by the petitioners and state regulatory commissions appearing as amici curiae to the effect that the Commission's forecast is well founded. [Footnote 23] Moreover, Page 365 U. S. 30 as a matter of common sense, it would seem difficult to deny that the channeling of vast quantities of a wasting resource into unregulated transactions at a high price will result in scarcity to other consumers and a general price increase. Cf. Panhandle Eastern Pipe Line Co. v. Public Service Commission, 332 U. S. 507, 332 U. S. 521, note 19.Respondents' last point is that insufficient weight was afforded the evidence concerning air pollution. Concededly, the testimony of Con. Ed.'s expert witness, the Commissioner of the Department of Air Pollution Control in New York City, was entitled to great weight. However, as the New York Commissioner himself admitted, it was not possible for him to establish a definite relation between injury to health and the stack emissions at the Waterside station. [Footnote 24] More importantly, it was not shown that other methods -- particularly the use of gas presently available to Con. Ed. under other forms of service [Footnote 25] -- could not be used to solve the problem. Consequently, we cannot say that the Commission acted irrationally in concluding that Con. Ed.'s proof was insufficient. See Charleston & Western Carolina R. Co. v. Federal Power Commission, 98 U.S.App.D.C. 241, 234 F.2d 62.Neither this Court nor the Commission holds in this case that sales to pipelines are generally more in accord with the public interest than other sales; nor do we authorize the elimination of direct sales of gas under appropriate circumstances nor the denial of a certificate Page 365 U. S. 31 to any arbitrarily chosen group of purchasers. All we hold is that the Commission did not abuse its discretion in considering, among other factors, those of end use, preemption of pipeline facilities, and price in deciding that the public convenience and necessity did not require the issuance of the certificate requested. The judgment of the Court of Appeals must beReversed | U.S. Supreme CourtFPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1 (1961)Federal Power Commission v.Transcontinental Gas Pipe Line Corp.No. 45Argued November 15, 1960Decided January 23, 1961*365 U.S. 1SyllabusA public utility company in New York City contracted for the direct purchase of natural gas from producers in Texas, not for resale but for consumption under its own boilers, and it arranged with a pipeline company for transportation of the gas to New York City. The pipeline company applied to the Federal Power Commission for a certificate of public convenience and necessity under § 7(e) of the Natural Gas Act, and offered proof, which was not challenged, that its application met all the conventional tests. The Commission denied the certificate after considering, inter alia, the desirability of the particular end use to which this gas would be put, the possibility of preemption of pipeline capacity and gas reserves by sales to industrial users, the price agreed upon, and the effect of this and similar future transactions on the price and availability of natural gas generally.Held: the Commission did not exceed its authority or abuse its discretion in denying the certificate on the basis of these considerations. Pp. 365 U. S. 3-31.(a) The desirability of the use to which the gas would be put and the possibility of preemption of pipeline capacity and gas Page 365 U. S. 2 reserves by sales to industrial users were properly of concern to the Commission in passing on this application. Pp. 365 U. S. 8-22.(b) In considering this application, it was proper for the Commission to consider the effect which the high price charged in the sale here involved would have on future field prices for natural gas. Pp. 365 U. S. 23-28(c) The Commission did not err by taking cognizance of considerations dehors the record in concluding that widespread direct sales at high prices probably would result in price increases. Pp. 365 U. S. 28-30.(d) It cannot be said that the Commission acted irrationally in concluding that the evidence offered by the purchaser was insufficient to establish that its use of the gas was justified by the need to reduce air pollution. P. 365 U. S. 30.271 F.2d 942 reversed. Page 365 U. S. 3 |
319 | 1975_74-5968 | MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to consider whether a trial court's order directing petitioner, the defendant in a federal prosecution, not to consult his attorney during a regular overnight recess, called while petitioner was on the stand as a witness and shortly before cross-examination was to begin, deprived him of the assistance of counsel in violation of the Sixth Amendment.A grand jury in the Middle District of Florida returned indictments charging petitioner and several codefendants with conspiracy to import and illegal importation of a controlled substance into the United States, in violation of 18 U.S.C. § 371 and 21 U.S.C. § 952(a), and with possession of marihuana, Page 425 U. S. 82 in violation of 21 U.S.C. § 841(a). The charges grew out of plans for several of the defendants to fly about 1000 pounds of marihuana from Colombia into the United States, plans that might have succeeded but for the fact that the pilot of the charter plane informed the United States Customs Service of the arrangements.The trial of petitioner and one codefendant commenced on Tuesday, October 9, 1973. Petitioner testified in his own defense on Tuesday, October 16, and Wednesday, October 17. Petitioner's counsel concluded direct examination at 4:55 p.m. Tuesday. When the court recessed for the night, and after the jury departed, the prosecutor asked the judge to instruct petitioner not to discuss the case overnight with anyone. Throughout the trial, the judge had given the same instruction to every witness whose testimony was interrupted by a recess.Petitioner's attorney objected, explaining that he believed he had a right to confer with his client about matters other than the imminent cross-examination, and that he wished to discuss problems relating to the trial with his client. The judge indicated his confidence that counsel would properly confine the discussion, but expressed some doubt that petitioner would be able to do so, saying: "I think he would understand it if I told him just not to talk to you; and I just think it is better that he not talk to you about anything." The judge suggested that counsel could have an opportunity immediately after the recess to discuss with his client matters other than the cross-examination, such as what witnesses were to be called the next day, and he indicated that he would grant a recess the next day so that counsel could consult with petitioner after petitioner's testimony ended. Counsel persisted in his Page 425 U. S. 83 objection, although he appropriately indicated that he would -- as, in fact, he did -- comply with the court's order. [Footnote 1]When court convened the next morning, petitioner's Page 425 U. S. 84 attorney asked and received permission to reopen his direct examination of petitioner. The cross-examination which followed was finished in the morning; the judge Page 425 U. S. 85 then called the luncheon recess. Petitioner -- whose testimony on redirect examination was yet to come -- was permitted to confer with his attorney during the noon recess. The trial concluded the following day, and petitioner was convicted on all three counts; he was sentenced to concurrent three-year prison terms.The Court of Appeals affirmed petitioner's conviction. Page 425 U. S. 86 United States v. Fink, 502 F.2d 1 (CA5 1974). On the point here at issue, the court held that petitioner's failure to claim any prejudice resulting from his inability to consult with counsel during one evening of the trial was fatal to his appeal. In so holding, the court relied on United States v. Leighton, 386 F.2d 822 (CA2 1967), cert. denied, 390 U.S. 1025 (1968), dealing with a similar order applied to a noon recess, and rejected the Third Circuit's position that prejudice need not be shown, United States v. Venuto, 182 F.2d 519 (1950), in a case involving an overnight recess. The Court of Appeals also disposed of several other claims of error. We granted certiorari limited to petitioner's claim that the order forbidding consultation with his attorney overnight denied him the assistance of counsel in violation of the Sixth Amendment. 421 U.S. 929.Our cases have consistently recognized the important role the trial judge plays in the federal system of criminal justice."[T]he judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law."Quercia v. United States, 289 U. S. 466, 289 U. S. 469 (1933). A criminal trial does not unfold like a play with actors following a script; there is no scenario, and can be none. The trial judge must meet situations as they arise, and, to do this, must have broad power to cope with the complexities and contingencies inherent in the adversary process. To this end, he may determine generally the order in which parties will adduce proof; his determination will be reviewed only for abuse of discretion. Goldsby v. United States, 160 U. S. 70, 160 U. S. 74 (1895); United States v. Martinez-Villanueva, 463 F.2d 1336 (CA9 1972); Nelson v. United States, 415 F.2d 483, 487 (CA5 1969), cert. denied, 396 U.S. 1060 (1970). Within limits, the judge may control the scope of rebuttal testimony, United States v. Chrzanowski, 502 F.2d 573, 575-576 (CA3 1974); United Page 425 U. S. 87 States v. Perez, 491 F.2d 167, 173 (CA9), cert. denied sub nom. Lombera v. United States, 419 U.S. 858 (1974); may refuse to allow cumulative, repetitive, or irrelevant testimony, Hamling v. United States, 418 U. S. 87, 418 U. S. 127 (1974); County of Macon v. Shores, 97 U. S. 272 (1877); and may control the scope of examination of witnesses, United States v. Nobles, 422 U. S. 225, 422 U. S. 231 (1975); Glasser v. United States, 315 U. S. 60, 315 U. S. 83 (1942). If truth and fairness are not to be sacrificed, the judge must exert substantial control over the proceedings.The Judge's power to control the progress and, within the limits of the adversary system, the shape of the trial includes broad power to sequester witnesses before, during, and after their testimony. Holder v. United States, 150 U. S. 91, 150 U. S. 92 (1893); United States v. Robinson, 502 F.2d 894 (CA7 1974); United States v. Eastwood, 489 F.2d 818, 821 (CA5 1974). Wigmore notes that centuries ago, the practice of sequestration of witnesses "already had in English practice an independent and continuous existence, even in the time of those earlier modes of trial which preceded the Jury and were a part of our inheritance of the common Germanic law." 6 J. Wigmore, Evidence § 1837, p. 348 (3d ed., 1940). The aim of imposing "the rule on witnesses," as the practice of sequestering witnesses is sometimes called, is twofold. It exercises a restraint on witnesses "tailoring" their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid. See Wigmore, supra, § 1838; F. Wharton, Criminal Evidence § 405 (C. Torcia ed., 1972). Sequestering a witness over a recess called before testimony is completed serves a third purpose as well -- preventing improper attempts to influence the testimony in light of the testimony already given.The trial Judge here sequestered all witnesses for both prosecution and defense and before each recess instructed Page 425 U. S. 88 the testifying witness not to discuss his testimony with anyone. Applied to nonparty witnesses who were present to give evidence, the orders were within sound judicial discretion, and are not challenged here.But the petitioner was not simply a witness; he was also the defendant. A sequestration order affects a defendant in quite a different way from the way it affects a nonparty witness who presumably has no stake in the outcome of the trial. A nonparty witness ordinarily has little, other than his own testimony, to discuss with trial counsel; a defendant in a criminal case must often consult with his attorney during the trial. Moreover, "the rule" accomplishes less when it is applied to the defendant, rather than a nonparty witness, because the defendant, as a matter of right, can be and usually is present for all testimony, and has the opportunity to discuss his testimony with his attorney up to the time he takes the witness stand.The recess at issue was only one of many called during a trial that continued over 10 calendar days. But it was an overnight recess, 17 hours long. It is common practice during such recesses for an accused and counsel to discuss the events of the day's trial. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day's testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day's events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer's guidance."The right to be heard would be, in many cases, of little avail if it did not comprehend the right to Page 425 U. S. 89 be heard by counsel. . . . [A defendant] is unfamiliar with the rules of evidence. . . . He lacks both the skill and knowledge adequately to prepare his defense, even though he [may] have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him."Powell v. Alabama, 287 U. S. 45, 287 U. S. 68-69 (1932). See also Argersinger v. Hamlin, 407 U. S. 25, 407 U. S. 31-36 (1972); Gideon v. Wainwright, 372 U. S. 335, 372 U. S. 343-45 (1963). Other courts have concluded that an order preventing a defendant from consulting his attorney during an overnight recess infringes upon this substantial right. See United States v. Venuto, 182 F.2d 519 (CA3 1950); People v. Noble, 42 Ill.2d 425! 248 N.E.2d 96 (1969); Commonwealth v. Werner, 206 Pa.Super. 498, 214 A.2d 276 (1965). But see People v. Prevost, 219 Mich. 233, 189 N.W. 92 (1922). [Footnote 2]There are other ways to deal with the problem of possible improper influence on testimony or "coaching" of a witness short of putting a barrier between client and counsel for so long a period as 17 hours. The opposing counsel in the adversary system is not without weapons to cope with "coached" witnesses. A prosecutor may cross-examine a defendant as to the extent of any "coaching" during a recess, subject, of course, to the control of the court. Skillful cross-examination could develop a Page 425 U. S. 90 record which the prosecutor in closing argument might well exploit by raising questions as to the defendant's credibility, if it developed that defense counsel had, in fact, coached the witness as to how to respond on the remaining direct examination and on cross-examination. In addition the trial judge, if he doubts that defense counsel will observe the ethical limits on guiding witnesses, [Footnote 3] may direct that the examination of the witness continue without interruption until completed. If the judge considers the risk high, he may arrange the sequence of testimony so that direct- and cross-examination of a witness will be completed without interruption. That this would not be feasible in some cases due to the length Page 425 U. S. 91 of direct and cross-examination does not alter the availability, in most cases, of a solution that does not cut off communication for so long a period as presented by this record. Inconvenience to the parties, witnesses, counsel, and court personnel may occasionally result if a luncheon or other recess is postponed or if a court continues in session several hours beyond the normal adjournment hour. In this day of crowded dockets, courts must frequently sit through and beyond normal recess; convenience occasionally must yield to concern for the integrity of the trial itself.There are a variety of ways to further the purpose served by sequestration without placing a sustained barrier to communication between a defendant and his lawyer. To the extent that conflict remains between the defendant's right to consult with his attorney during a long overnight recess in the trial, and the prosecutor's desire to cross-examine the defendant without the intervention of counsel, with the risk of improper "coaching," the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel. Brooks v. Tennessee, 406 U. S. 605 (1972).The challenged order prevented petitioner from consulting his attorney during a 17-hour overnight recess, when an accused would normally confer with counsel. We need not reach, and we do not deal with, limitations imposed in other circumstances. We hold that an order preventing petitioner from consulting his counsel "about anything" during a 17-hour overnight recess between his direct and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment.Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals, with directions that it be remanded to the Page 425 U. S. 92 District Court for proceedings consistent with this opinion.Reversed | U.S. Supreme CourtGeders v. United States, 425 U.S. 80 (1976)Geders v. United StatesNo. 74-5968Argued December 1, 1975Decided March 30, 1976425 U.S. 80SyllabusThe trial court's order preventing petitioner, the defendant in a federal criminal prosecution, from consulting his counsel "about anything" during a 17-hour overnight recess in the trial between his direct- and cross-examination held to deprive petitioner of his right to the assistance of counsel guaranteed by the Sixth Amendment. Pp. 425 U. S. 86-91.(a) A federal trial judge has broad power to sequester nonparty witnesses before, during, and after their testimony to restrain them from "tailoring" their testimony, to aid in detecting less-than-candid testimony, and (in the case of a recess called before testimony is completed) to prevent improper attempts to influence the testimony in light of the testimony already given. But a sequestration order applied to a criminal defendant affects the defendant quite differently from a nonparty witness, who presumably has no stake in the trial's outcome and little, other than his own testimony, to discuss with trial counsel. The defendant has the right to be present for all testimony, and may discuss his testimony with his attorney up to the time he takes the witness stand, so sequestration accomplishes less when applied to a defendant during a recess. A defendant is ordinarily ill-equipped to comprehend the trial process without a lawyer's guidance; he often must consult with counsel during the trial, and during overnight recesses often discusses the events of the day's trial and their significance. Pp. 425 U. S. 87-89.(b) The problem of possible improper influence on testimony or "coaching" can be dealt with in other ways, such as by a prosecutor's skillful cross-examination to discover whether "coaching" occurred during a recess, or by the trial judge's directing that the examination of witnesses continue without interruption until completed, or otherwise arranging the sequence of testimony so that direct- and cross-examination of a witness will be completed without interruption. Pp. 425 U. S. 89-91. Page 425 U. S. 81(c) To the extent that conflict remains between the defendant' right to consult with his attorney during an overnight recess in the trial, and the prosecutor's desire to cross-examine the defendant without the intervention of counsel, with the risk of improper "coaching," the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel. P. 425 U. S. 91.502 F.2d 1, reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which all Members joined except STEVENS, J., who took no part in the consideration or decision of the case. MARSHALL, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 425 U. S. 92. |
320 | 1972_71-1082 | MR. JUSTICE DOUGLAS delivered the opinion of the Court.This action was brought by merchant shipowners and operators, world shipping associations, members of the Florida coastal barge and towing industry, and owners and operators of oil terminal facilities and heavy industries located in Florida, to enjoin application of the Florida Oil Spill Prevention and Pollution Control Act, Fla.Laws 1970, C. 70-244, Fla.Stat.Ann. § 376.011 et seq. (Supp. 1973) (hereinafter referred to as the Florida Act). Officials responsible for enforcing the Florida Act were named as defendants, but the State of Florida intervened as a party defendant, asserting that its interests were much broader than those of the named defendants. A three-judge court was convened pursuant to 28 U.S.C. § 2281.The Florida Act imposes strict liability for any damage incurred by the State or private persons as a result of an oil spill in the State's territorial waters from any waterfront facility used for drilling for oil or handling the transfer or storage of oil (terminal facility) and from any ship destined for or leaving such facility. Each owner or operator of a terminal facility or ship subject to the Act must establish evidence of financial responsibility by insurance or a surety bond. [Footnote 1] In addition, the Florida Act provides for regulation by the State Department of Natural Resources with respect to containment Page 411 U. S. 328 gear and other equipment which must be maintained by ships and terminal facilities for the prevention of oil spills.Several months prior to the enactment of the Florida Act, Congress enacted the Water Quality Improvement Act of 1970, 84 Stat. 91, 33 U.S.C. § 1161 et seq. (hereinafter referred to as the Federal Act). [Footnote 1a] This Act subjects shipowners and terminal facilities to liability without fault up to $14,000,000 and $8,000,000, respectively, for cleanup costs incurred by the Federal Government as a result of oil spills. It also authorizes the President to promulgate regulations requiring ships and terminal facilities to maintain equipment for the prevention of oil spills. It is around that Act and the federally protected tenets of maritime law evidenced by Southern Pacific Co. v. Jensen, 244 U. S. 205, and its progeny that the controversy turns. The District Court held that the Florida Act is an unconstitutional intrusion into the federal maritime domain. It declared the Florida Act null and void, and enjoined its enforcement. 335 F. Supp. 1241.The case is here on direct appeal. We reverse. We find no constitutional or statutory impediment to permitting Florida, in the present setting of this case, to establish any "requirement or liability" concerning the impact of oil spillages on Florida's interests or concerns. To rule as the District Court has done is to allow federal admiralty jurisdiction to swallow most of the police power of the States over oil spillage -- an insidious form of pollution of vast concern to every coastal city or port Page 411 U. S. 329 and to all the estuaries on which the life of the ocean and the lives of the coastal people are greatly dependent.IIt is clear at the outset that the Federal Act does not preclude, but in fact allows, state regulation. Section 1161(o) provides that:"(1) Nothing in this section shall affect or modify in any way the obligations of any owner or operator of any vessel, or of any owner or operator of any onshore facility or offshore facility to any person or agency under any provision of law for damages to any publicly owned or privately owned property resulting from a discharge of any oil or from the removal of any such oil.""(2) Nothing in this section shall be construed as preempting any State or political subdivision thereof from imposing any requirement or liability with respect to the discharge of oil into any waters within such State.""(3) Nothing in this section shall be construed . . . to affect any State or local law not in conflict with this section."(Emphasis added.) According to the Conference Report,"any State would be free to provide requirements and penalties similar to those imposed by this section or additional requirements and penalties. These, however, would be separate and independent from those imposed by this section, and would be enforced by the States through its courts. [Footnote 2]"(Emphasis added.) The Florida Act covers a wide range of "pollutants," § 3(7), and a restricted definition of pollution. § 3(8). We have here, however, no question concerning any pollutant except oil. Page 411 U. S. 330The Federal Act, to be sure, contains a pervasive system of federal control over discharges of oil "into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone." § 1161(b)(1). So far as liability is concerned, an owner or operator of a vessel is liable to the United States for actual costs incurred for the removal of oil discharged in violation of § 1161(b)(2) in an amount "not to exceed $100 per gross ton of such vessel or $14,000,000, whichever is lesser," § 1161(f)(1), except for discharges caused solely by an act of God, act of war, negligence of the United States, or act or omission of another party. With like exceptions, the owner or operator of an onshore or offshore facility is liable to the United States for the actual costs incurred by the United States in an amount not to exceed $8,000,000. § 1161(f)(2)-(3). But, in each case, the owner or operator is liable to the United States for the full amount of the costs where the United States can show that the discharge of oil was "the result of willful negligence or willful misconduct within the privity and knowledge of the owner." Comparable provisions of liability spell out the obligations of "a third party" to the United States for its actual costs incurred in the removal of the oil. § 1161(g).So far as vessels are concerned, the federal Limited Liability Act, 46 U.S.C. §§ 181-189, extends to damages caused by oil spills even where the injury is to the shore. Richardson v. Harmon, 222 U. S. 96, 222 U. S. 106. That Act limits the liabilities of the owners of vessels to the "value of such vessels and freight pending." 46 U.S.C. § 189.Section 12 of the Florida Act makes all licensees [Footnote 3] of Page 411 U. S. 331 terminal facilities "liable to the state for all costs of cleanup or other damage incurred by the state and for damages resulting from injury to others," it not being necessary for the State to plead or prove negligence. [Footnote 4] There is no conflict between § 12 of the Florida Act and § 1161 of the Federal Act when it comes to damages to property interests, for the Federal Act reaches only costs of cleaning up. As respects damages, § 14 of the Florida Act requires evidence of financial responsibility of a terminal facility or vessel -- a provision which does not conflict with the Federal Act.The Solicitor General says that, while the Limited Liability Act, so far as vessels are concerned, would override § 12 of the Florida Act by reason of the Supremacy Clause, the Limited Liability Act has no bearing on "facilities" regulated by the Florida Act. Moreover, § 12 has not yet been construed by the Florida courts, and it is susceptible of an interpretation so far as vessels are concerned which would be in harmony with the Federal Act. Section 12 does not, in terms, provide for unlimited liability.Moreover, while the Federal Act determines damages measured by the cost to the United States for cleaning up oil spills, the damages specified in the Florida Act relate in part to the cost to the State of Florida in cleaning up the spillage. Those two sections are harmonious parts of an integrated whole. Section 1161(c)(2) directs the President to prepare a National Contingency Page 411 U. S. 332 Plan for the containment, dispersal, and removal of oil. The plan must provide that federal agencies "shall" act "in coordination with State and local agencies." Cooperative action with the States is also contemplated by § 1161(e), which provides that, "[i]n addition to any other action taken by a State or local government," the President may, when there is an imminent and substantial threat to the public health or welfare, direct the United States Attorney of the district in question to bring suit to abate the threat. The reason for the provision in § 1161(o)(2), stating that nothing in § 1161 preempts any State "from imposing any requirement or liability with respect to the discharge of oil into any waters within such State," is that the scheme of the Act is one which allows -- though it does not require -- cooperation of the federal regime with a state regime.If Florida wants to take the lead in cleaning up oil spillage in her waters, she can use § 12 of the Florida Act and recoup her costs from those who did the damage. Whether the amount of costs she could recover from a wrongdoer is limited to those specified in the Federal Act and whether, in turn, this new Federal Act removes the preexisting limitations of liability in the Limited Liability Act are questions we need not reach here. Any opinion on them is premature. It is sufficient for this day to hold that there is room for state action in cleaning up the waters of a State and recouping, at least within federal limits, so far as vessels are concerned, her costs.Beyond that is the potential claim under § 12 of the Florida Act for "other damage incurred by the state and for damages resulting from injury to others." The Federal Act in no way touches those areas. A State may Page 411 U. S. 333 have public beaches ruined by oil spills. Shrimp may be destroyed, and clam, oyster, and scallop beds ruined and the livelihood of fishermen imperiled. [Footnote 5] The Federal Page 411 U. S. 334 Act takes no cognizance of those claims, but only of costs to the Federal Government, if it does the cleaning up.We held in Skiriotes v. Florida, 313 U. S. 69, that, while Congress had regulated the size of commercial sponges taken in Florida waters, it had not dealt with any diving apparatus that might be used. Florida had such a law, and was allowed to enforce it against one of its citizens. Mr. Chief Justice Hughes, speaking for the Court, said:"It is also clear that Florida has an interest in the proper maintenance of the sponge fishery, and that the statute, so far as applied to conduct within the territorial waters of Florida, in the absence of conflicting federal legislation, is within the police power of the State."Id. at 313 U. S. 75.Similarly, in Manchester v. Massachusetts, 139 U. S. 240, 139 U. S. 266, we stated that, if Congress fails to assume control of fisheries in a bay, "the right to control such fisheries must remain with the State which contains such bays."Florida, in her brief, accurately states that no remedy under the Federal Act exists for state or private property owners damaged by a massive oil slick such as hit England and France in 1967 in the Torrey Canyon disaster. The Torrey Canyon carried 880,000 barrels Page 411 U. S. 335 of crude oil. [Footnote 6] Today, not only is more oil being moved by sea each year, but the tankers are much larger."The average tanker used during World War II had a capacity of 16,000 tons, but, by 1965, that average had risen to 27,000 tons, and new tankers delivered in 1966 averaged about 76,000 tons. A Japanese company has launched a 276,000-ton tanker, and other Japanese yards have orders for tankers as large as 312,000 tons. More than sixty tankers of 150,000 tons or more are on order throughout the world, tankers of 500,000 to 800,000 tons are on the drawing boards, and those of more than one million tons are thought to be feasible. On the new 1,010 foot British tanker 'Esso Mercia,' two officers have been issued bicycles to help patrol the decks of the 166,890 ton vessel.""The size of the tanker fleet itself is growing at a rate that rivals the growth in average size of new tankers. In 1955, the world tanker fleet numbered about 2,500 vessels. By 1965, it had increased to 3,500, and in 1968, it numbered some 4,300 ships. At the present time, nearly one ship out of every five in the world merchant fleet is engaged in transporting oil, and nearly the entire fleet is powered by oil. [Footnote 7]"Our Coast Guard reports [Footnote 8] that, while, in 1970, there were 3,711 oil spills in our waters, in 1971, there were 8,736. The damage to state interests already caused by oil spills, the increase in the number of oil spills, and the risk of ever-increasing damage by reason of the size of modern tankers underlie the concern of coastal States.While the Federal Act is concerned only with actual cleanup costs incurred by the Federal Government, the Page 411 U. S. 336 State of Florida is concerned with its own cleanup costs. Hence, there need be no collision between the Federal Act and the Florida Act, because, as noted, the Federal Act presupposes a coordinated effort with the States, and any federal limitation of liability runs to "vessels," not to shore "facilities." That is one of the reasons why the Congress decided that the Federal Act does not preempt the States from establishing either "any requirement or liability" respecting oil spills.Moreover, since Congress dealt only with "cleanup" costs, it left the States free to impose "liability" in damages for losses suffered both by the States and by private interests. The Florida Act imposes liability without fault. So far as liability without fault for damages to state and private interests is concerned, the police power has been held adequate for that purpose. State statutes imposing absolute liability on railroads for all property lost through fires caused by sparks emitted from locomotive engines have been sustained. St. Louis & San Francisco R. Co. v. Mathews, 165 U. S. 1. The Federal Act, however, while restricted to cleanup costs incurred by the United States, imposes limited liability for those costs, and provides certain exceptions, unless willfulness is established. Where liability is imposed by §§ 1161(f)-(g), previously summarized, the United States may recover the full amount of the costs where the oil spillage was the result of "willful negligence or willful misconduct." If the coordinated federal plan, in actual operation, leaves the State of Florida to do the cleanup work, there might be financial burdens imposed greater than would have been imposed had the Federal Government done the cleanup work. But it will be time to resolve any such conflict between federal and state regimes when it arises.Nor can we say at this point that regulations of the Florida Department of Natural Resources requiring "containment Page 411 U. S. 337 gear" pursuant to § 7(2)(a) of the Florida Act would be per se invalid because the subject to be regulated requires uniform federal regulation. Cf. Huron Cement Co. v. Detroit, 362 U. S. 440. Resolution of this question, as well as the question whether such regulations will conflict with Coast Guard regulations promulgated on December 21, 1972, pursuant to § 1161(j)(1) of the Federal Act, 37 Fed.Reg. 28250, should await a concrete dispute under applicable Florida regulations. Finally, the provision of the Florida Act requiring the licensing of terminal facilities, a traditional state concern, creates no conflict per se with federal legislation. Section 1171(b)(1) of the Federal Act provides that federal permits will not be issued to terminal facility operators or owners unless the applicant first supplies a certificate from the State that his operation "will be conducted in a manner which will not violate applicable water quality standards." And Tit. I, § 102(b), of the recently enacted Ports and Waterways Safety Act of 1972, Pub.L. 92-340, 86 Stat. 426, 33 U.S.C. § 1222(b) (1970 ed., Supp. II), provides that the Act does not prevent"a State or political subdivision thereof from prescribing for structures only higher safety equipment requirements or safety standards than those which may be prescribed pursuant to this title."IIAnd so, in the absence of federal preemption and any fatal conflict between the statutory schemes, the issue comes down to whether a State constitutionally may exercise its police power respecting maritime activities concurrently with the Federal Government.The main barriers found by the District Court to the Florida Act are Southern Pacific Co. v. Jensen, 244 U. S. 205, and its progeny. Jensen held that a maritime worker on a vessel in navigable waters could not constitutionally receive an award under New York's workmen's compensation Page 411 U. S. 338 law, because the remedy in admiralty was exclusive. Later, in Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, after Congress expressly allowed the States in such cases to grant a remedy, the Court held that Congress had no such power.But those decisions have been limited by subsequent holdings of this Court. As stated by Mr. Justice Frankfurter in Romero v. International Terminal Co., 358 U. S. 354, 358 U. S. 373, Jensen and its progeny mark isolated instances where "state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system." Mr. Justice Frankfurter added, however:"But this limitation still leaves the States a wide scope. State-created liens are enforced in admiralty. State remedies for wrongful death and state statutes providing for the survival of actions, both historically absent from the relief offered by the admiralty, have been upheld when applied to maritime causes of action. Federal courts have enforced these statutes. State rules for the partition and sale of ships, state laws governing the specific performance of arbitration agreements, state laws regulating the effect of a breach of warranty under contracts of maritime insurance -- all these laws and others have been accepted as rules of decision in admiralty cases, even, at times, when they conflicted with a rule of maritime law which did not require uniformity."Id. at 358 U. S. 373-374.Moreover, in Just v. Chambers, 312 U. S. 383, we gave our approval to The City of Norwalk, 55 F. 98, written by Judge Addison Brown, holding that a State may modify or supplement maritime law even by creating a liability which a court of admiralty would recognize and enforce, provided the state action is not hostile "to the characteristic features of the maritime law or inconsistent with federal legislation," 312 U.S. at 312 U. S. 388. Mr. Chief Justice Hughes after citing Steamboat Co. v. Chase, 16 Page 411 U. S. 339 Wall. 522, and Sherlock v. Alling, 93 U. S. 99, went on to hold that, while no suit for wrongful death would lie in the federal courts under general maritime law, state statutes giving damages in such cases were valid. He said,"The grounds of objection to the admiralty jurisdiction in enforcing liability for wrongful death were similar to those urged here -- that is, that the Constitution presupposes a body of maritime law, that this law, as a matter of interstate and international concern, requires harmony in its administration, and cannot be subject to defeat or impairment by the diverse legislation of the States, and hence that Congress alone can make any needed changes in the general rules of the maritime law. But these contentions proved unavailing, and the principle was maintained that a State, in the exercise of its police power, may establish rules applicable on land and water within its limits, even though these rules incidentally affect maritime affairs, provided that the state action""does not contravene any acts of Congress, nor work any prejudice to the characteristic features of the maritime law, nor interfere with its proper harmony and uniformity in its international and interstate relations.""It was decided that the state legislation encountered none of these objections. The many instances in which state action had created new rights, recognized and enforced in admiralty, were set forth in The City of Norwalk, and reference was also made to the numerous local regulations under state authority concerning the navigation of rivers and harbors. There was the further pertinent observation that the maritime law was not a complete and perfect system, and that, in all maritime countries, there is a considerable body of municipal law that underlies the maritime law as the basis of its administration. These views find abundant support in the history of the maritime law and in the decisions of this Court."312 U.S. at 312 U. S. 389-390. Page 411 U. S. 340Mr. Chief Justice Hughes added that our decisions as of 1941, the date of Just v. Chambers, gave broad"recognition of the authority of the States to create rights and liabilities with respect to conduct within their borders, when the state action does not run counter to federal laws or the essential features of an exclusive federal jurisdiction."Id. at 312 U. S. 391.Historically, damages to the shore or to shore facilities were not cognizable in admiralty. See, e.g., 70 U. S. 3 Wall. 20; Martin v. West, 222 U. S. 191. Mr. Justice Story wrote in 1813,"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. [Footnote 9]"Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13,902) (CC Me.).On June 19, 1948, Congress enacted the Admiralty Extension Act, 46 U.S.C. § 740. [Footnote 10] The Court considered the Act in Victory Carriers, Inc. v. Law, 404 U. S. 202. In that case, the Court held that the Admiralty Extension Act did not apply to a longshoreman performing loading and unloading services on the dock. The longshoreman was relegated to his remedy under the state workmen's compensation law. Id. at 404 U. S. 215. The Court said,"At least in the absence of explicit congressional authorization, Page 411 U. S. 341 we shall not extend the historic boundaries of the maritime law."Id. at 404 U. S. 214. [Footnote 11]The Admiralty Extension Act has survived constitutional attack in the lower federal courts, [Footnote 12] and was applied without question by this Court in Gutierrez v. Waterman S.S. Corp., 373 U. S. 206. The Court recognized in Victory Carriers, however, that the Act may "intrude on an area that has heretofore been reserved for state law." Id. at 373 U. S. 212. It cautioned that, under these circumstances,"we should proceed with caution in construing constitutional and statutory provisions dealing with the jurisdiction of the federal courts."Ibid. While Congress has extended admiralty jurisdiction beyond the boundaries contemplated by the Framers, it hardly follows from the constitutionality of that extension that we must sanctify the federal courts with exclusive jurisdiction to the exclusion of powers traditionally within the competence of the States. One can read the history of the Admiralty Extension Act without finding any clear indication that Congress intended that sea-to-shore injuries be exclusively triable in the federal courts. [Footnote 13]Even though Congress has acted in the admiralty area, state regulation is permissible, absent a clear conflict with the federal law. Thus, in Kelly v. Washington, 302 U. S. 1, it appeared that, while Congress had provided a comprehensive system of inspection of vessels on navigable Page 411 U. S. 342 waters, id. at 302 U. S. 4, the State of Washington also had a comprehensive code of inspection. Some of those state standards conflicted with the federal requirements, id. at 302 U. S. 14-15, but those provisions of the Washington law relating to safety and seaworthiness were not in conflict with the federal law. So the question was whether the absence of congressional action and the need for uniformity of regulation barred state action. Mr. Chief Justice Hughes, writing for the Court, ruled in the negative, saying:"A vessel which is actually unsafe and unseaworthy in the primary and commonly understood sense is not within the protection of that principle. The State may treat it as it may treat a diseased animal or unwholesome food. In such a matter, the State may protect its people without waiting for federal action providing the state action does not come into conflict with federal rules. If, however, the State goes farther and attempts to impose particular standards as to structure, design, equipment and operation which, in the judgment of its authorities, may be desirable but pass beyond what is plainly essential to safety and seaworthiness, the State will encounter the principle that such requirements, if imposed at all, must be through the action of Congress which can establish a uniform rule. Whether the State in a particular matter goes too far must be left to be determined when the precise question arises."Id. at 302 U. S. 15.That decision was rendered before the Admiralty Extension Act was passed.Huron Cement Co. v. Detroit, 362 U. S. 440, however, arose after that Act became effective. Ships cruising navigable waters and inspected and licensed under federal Page 411 U. S. 343 acts were charged with violating Detroit's Smoke Abatement Code. The company and its agents were, indeed, criminally charged with violating that Code. The Court in sustaining the state prosecution said:"The ordinance was enacted for the manifest purpose of promoting the health and welfare of the city's inhabitants. Legislation designed to free from pollution the very air that people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power. In the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government."Id. at 362 U. S. 442.The Court reasoned that there was room for local control, since federal inspection was "limited to affording protection from the perils of maritime navigation," while the Detroit ordinance was aimed at "the elimination of air pollution to protect the health and enhance the cleanliness of the local community." Id. at 362 U. S. 445. The Court, in reviewing prior decisions, noted that a federally licensed vessel was not exempt (1) "from local pilotage laws"; (2) "local quarantine laws"; (3) "local safety inspections"; or (4) "local regulation of wharves and docks." Id. at 362 U. S. 447.It follows, a fortiori, that sea-to-shore pollution -- historically within the reach of the police power of the States -- is not silently taken away from the States by the Admiralty Extension Act, which does not purport to supply the exclusive remedy.As discussed above, we cannot say with certainty at this stage that the Florida Act conflicts with any federal Act. We have only the question whether the waiver Page 411 U. S. 344 of preemption by Congress in § 1161(o)(2) concerning the imposition by a State of "any requirement or liability" is valid.It is valid unless the rule of Jensen and Knickerbocker Ice is to engulf everything that Congress chose to call "admiralty," preempting state action. Jensen and Knickerbocker Ice have been confined to their facts, viz., to suits relating to the relationship of vessels, plying the high seas and our navigable waters, and to their crews. The fact that a whole system of liabilities was established on the basis of those two cases led us, years ago, to establish the "twilight zone" where state regulation was permissible. See Davis v. Department of Labor, 317 U. S. 249, 317 U. S. 252-253. Where there was a hearing by a federal agency and a conclusion by that agency that the case fell within the federal jurisdiction, we made its findings final. Ibid. Where there were no such findings, we presumed state law, in terms applicable, was constitutional. Id. at 317 U. S. 257-258. That is the way the "twilight zone" has been defined.Jensen thus has vitality left. But we decline to move the Jensen line of cases shoreward to oust state law from situations involving shoreside injuries by ships on navigable waters. The Admiralty Extension Act does not preempt state law in those situations. See Nacirema Operating Co. v. Johnson, 396 U. S. 212.The judgment below isReversed | U.S. Supreme CourtAskew v. American Waterways Operators, Inc., 411 U.S. 325 (1973)Askew v. American Waterways Operators, Inc.No. 71-1082Argued November 14, 1972Decided April 18, 1973411 U.S. 325SyllabusFlorida Oil Spill Prevention and Pollution Control Act, providing for the State's recovery of cleanup costs and imposing strict, no-fault liability on waterfront oil-handling facilities and ships destined for or leaving such facilities for any oil-spill damage to the State or private persons, does not, in the context of this action by shipping interests to enjoin application of the Florida statute, invade a regulatory area preempted by the federal Water Quality Improvement Act, which is concerned solely with recovery of actual cleanup costs incurred by the Federal Government, and presupposes a coordinated federal-state effort to deal with coastal oil pollution. Nor is the State's police power over sea-to-shore pollution preempted by the Admiralty Extension Act, which does not purport to supply an exclusive remedy in this admiralty-related situation. Southern Pacific Co. v. Jewsen, 244 U. S. 205, and Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, distinguished. Pp. 411 U. S. 329-344.335 F. Supp. 1241, reversed.DOUGLAS, J., delivered the opinion for a unanimous Court. Page 411 U. S. 327 |
321 | 1957_48 | MR. JUSTICE WHITTAKER delivered the opinion of the Court.Appellant, Rose Staub, was convicted in the Mayor's Court of the City of Baxley, Georgia, of violation of a city ordinance and was sentenced to imprisonment for 30 days or to pay a fine of $300. The Superior Court of the county affirmed the judgment of conviction; the Court of Appeals of the State affirmed the judgment of the Superior Court, 94 Ga.App. 18, 93 S.E.2d 375, and the Supreme Court of the State denied an application for certiorari. The case comes here on appeal.The ordinance in question is set forth in the margin. [Footnote 1] Its violation, which is not denied, arose from the following Page 355 U. S. 315 undisputed facts shown at the trial: appellant was a salaried employee of the International Ladies' Garment Workers Union, which was attempting to organize the employees of a manufacturing company located in the nearby town of Hazelhurst. A number of those employees lived in Bazley. On February 19, 1954, appellant and one Mamie Merritt, also a salaried employee of the union, went to Baxley and, without applying for permits required under the ordinance, talked with several of the employees at their homes about joining the union. While in a restaurant in Baxley on that day, they were sought out and questioned by the Chief of Police concerning their activities in Baxley, and appellant told him that they were "going around talking to some of the women to organize the factory workers . . . and hold[ing] meetings with them for that purpose." Later Page 355 U. S. 316 that day, a meeting was held at the home of one of the employees, attended by three other employees, at which, in the words of the hostess, appellant"just told us they wanted us to join the union, and said it would be a good thing for us to do . . . and went on to tell us how this union would help us."Appellant told those present that the membership dues would be 64 cents per week, but would not be payable until the employees were organized. No money was asked or received from the persons at the meeting, but they were invited "to get other girls . . . there to join the union" and blank membership cards were offered for that use. Appellant further explained that the immediate objective was to "have enough cards signed to petition for an election . . . with the Labor Board." [Footnote 2]On the same day, a summons was issued and served by the Chief of Police commanding appellant to appear Page 355 U. S. 317 before the Mayor's Court three days later to answer "to the offense of Soliciting Members for an Organization without a Permit & License."Before the trial, appellant moved to abate the action upon a number of grounds, among which were the contentions that the ordinance"shows on its face that it is repugnant to and violative of the 1st and 14th Amendments to the Constitution of the United States in that it places a condition precedent upon, and otherwise unlawfully restricts, the defendant's freedom of speech as well as freedom of the press and freedom of lawful assembly"by requiring, as conditions precedent to the exercise of those rights, the issuance of a "license" which the Mayor and city council are authorized by the ordinance to grant or refuse in their discretion, and the payment of a "license fee" which is discriminatory and unreasonable in amount and constitutes a prohibitory flat tax upon the privilege of soliciting persons to join a labor union. These contentions were overruled by the Mayor's Court and, after a continuance, [Footnote 3] the case was tried and appellant was convicted and sentenced as stated. [Footnote 4] The same contentions were made in the Superior Court, where the city answered, denying "that the ordinance is invalid or void for any of the reasons stated" by appellant, and, after a hearing, that court affirmed the judgment of conviction. Page 355 U. S. 318Those contentions were renewed in the Court of Appeals, but that court declined to consider them. It stated that "[t]he attack should have been made against specific sections of the ordinance, and not against the ordinance as a whole"; that, "[h]aving made no effort to secure a license, the defendant is in no position to claim that any section of the ordinance is invalid or unconstitutional"; and that, since it"appears that the attack was not made against any particular section of the ordinance as being void or unconstitutional, and that the defendant has made no effort to comply with any section of the ordinance . . . , it is not necessary to pass upon the sufficiency of the evidence, the constitutionality of the ordinance, or any other phase of the case. . . ."The court then held that "[t]he trial court did not err in overruling the writ of certiorari," and affirmed the judgment of conviction. 94 Ga.App. at 24, 93 S.E.2d at 378-379.At the threshold, appellee urges that this appeal be dismissed because, it argues, the decision of the Court of Appeals was based upon state procedural grounds, and thus rests upon an adequate nonfederal basis, and that we are therefore without jurisdiction to entertain it. Hence, the question is whether that basis was an adequate one in the circumstances of this case."Whether a pleading sets up a sufficient right of action or defense, grounded on the Constitution or a law of the United States, is necessarily a question of federal law, and, where a case coming from a state court presents that question, this court must determine for itself the sufficiency of the allegations displaying the right or defense, and is not concluded by the view taken of them by the state court."First National Bank v. Anderson, 269 U. S. 341, 269 U. S. 346, and cases cited. See also Schuylkill Trust Co. v. Pennsylvania, 296 U. S. 113, 296 U. S. 122-123; and Lovell v. Griffin, 303 U. S. 444, 303 U. S. 450. As Mr. Justice Holmes said in Davis v. Wechsler, 263 U. S. 22, 263 U. S. 24,"Whatever springes the State may set Page 355 U. S. 319 for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice."Whether the constitutional rights asserted by the appellant were. . . given due recognition, by the [Court of Appeals] is a question as to which the [appellant is] entitled to invoke our judgment, and this [she has] done in the appropriate way. It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward non-federal grounds of decision that were without any fair or substantial support . . . [for] if non-federal grounds, plainly untenable, may be thus put forward successfully, our power to review easily may be avoided.Ward v. Love County, 253 U. S. 17, 253 U. S. 22, and cases cited.The first of the nonfederal grounds relied on by appellee, and upon which the decision of the Court of Appeals rests, is that appellant lacked standing to attack the constitutionality of the ordinance because she made no attempt to secure a permit under it. This is not an adequate nonfederal ground of decision. The decisions of this Court have uniformly held that the failure to apply for a license under an ordinance which, on its face, violates the Constitution does not preclude review in this Court of a judgment of conviction under such an ordinance. Smith v. Cahoon, 283 U. S. 553, 283 U. S. 562; Lovell v. Griffin, 303 U. S. 444, 303 U. S. 452."The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands."Jones v. Opelika, 316 U. S. 584, 316 U. S. 602, dissenting opinion adopted per curiam on rehearing, 319 U. S. 319 U.S. 103, 319 U. S. 104.Appellee also contends that the holding of the Court of Appeals, that appellant's failure to attack "specific sections" of the ordinance rendered it unnecessary, under Page 355 U. S. 320 Georgia procedure, "to pass upon . . . the constitutionality of the ordinance, or any other phase of the case . . . " constitutes an adequate "nonfederal ground" to preclude review in this Court. We think this contention is "without any fair or substantial support" (Ward v. Love County, supra), and therefore does not present an adequate nonfederal ground of decision in the circumstances of this case. The several sections of the ordinance are interdependent in their application to one in appellant's position, and constitute but one complete act for the licensing and taxing of her described activities. For that reason, no doubt, she challenged the constitutionality of the whole ordinance, and, in her objections, used language challenging the constitutional effect of all its sections. She did, thus, challenge all sections of the ordinance, though not by number. To require her, in these circumstances, to count off, one by one, the several sections of the ordinance would be to force resort to an arid ritual of meaningless form. Indeed, the Supreme Court of Georgia seems to have recognized the arbitrariness of such exaltation of form. Only four years ago, that court recognized that an attack on such a statute was sufficient if "the [statute] so challenged was invalid in every part for some reason alleged." Flynn v. State, 209 Ga. 519, 522, 74 S.E.2d 461, 464 (1953). In enunciating that rule, the court was following a long line of its own decisions. Atlantic Loan Co. v. Peterson, 181 Ga. 266, 269, 182 S.E. 15, 16-17 (1935); Miller v. Head, 186 Ga. 694, 708, 198 S.E. 680, 687-688(1938); Stegall v. Southwest Georgia Regional Housing Authority, 197 Ga. 571, 30 S.E.2d 196 (1944); Krasner v. Rutledge, 204 Ga. 380, 383, 49 S.E.2d 864, 866 (1948).We conclude that the decision of the Court of Appeals does not rest on an adequate nonfederal ground, and that we have jurisdiction of this appeal. Page 355 U. S. 321The First Amendment of the Constitution provides: "Congress shall make no law . . . abridging the freedom of speech. . . ." This freedom is among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action, and municipal ordinances adopted under state authority constitute state action. Lovell v. Griffin, supra, at 303 U. S. 450.This ordinance, in its broad sweep, makes it an offense to "solicit" citizens of the City of Baxley to become members of any "organization, union or society" which requires "fees [or] dues" from its members without first applying for and receiving from the Mayor and Council of the City a "permit" (Sections I and II) which they may grant or refuse to grant (Section V) after considering"the character of the applicant, the nature of the . . . organization for which members are desired to be solicited, and its effects upon the general welfare of [the] citizens of the City of Baxley."(Section IV)Appellant's first contention in this Court is that the ordinance is invalid on its face because it makes enjoyment of the constitutionally guaranteed freedom of speech contingent upon the will of the Mayor and Council of the City, and thereby constitutes a prior restraint upon, and abridges, that freedom. Believing that appellant is right in that contention and that the judgment must be reversed for that reason, we confine our considerations to that particular question and do not reach other questions presented.It will be noted that appellant was not accused of any act against the peace, good order or dignity of the community, nor for any particular thing she said in soliciting employees of the manufacturing company to join the union. She was simply charged and convicted for "soliciting members for an organization without a Permit." Page 355 U. S. 322 This solicitation, as shown by the evidence, consisted solely of speaking to those employees in their private homes about joining the union. [Footnote 5]It will also be noted that the permit is not to be issued as a matter of course, but only upon the affirmative action of the Mayor and Council of the City. They are expressly authorized to refuse to grant the permit if they do not approve of the applicant or of the union or of the union's "effects upon the general welfare of citizens of the City of Baxley." These criteria are without semblance of definitive standards or other controlling guides governing the action of the Mayor and Council in granting or withholding a permit. Cf. Niemotko v. Maryland, 340 U. S. 268, 340 U. S. 271-273. It is thus plain that they act in this respect in their uncontrolled discretion.It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.In Cantwell v. Connecticut, 310 U. S. 296, this Court held invalid an Act which proscribed soliciting money or any valuable thing for "any alleged religious, charitable or philanthropic cause" unless the "cause" is approved by the secretary of the public welfare council of the state. Speaking for a unanimous Court, Mr. Justice Roberts said:"It will be noted, however, that the Act requires an application to the secretary of the public welfare Page 355 U. S. 323 council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion . . . is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth. . . . [T]o condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution."310 U.S. at 310 U. S. 305, 310 U. S. 307.To the same effect are Lovell v. Griffin, supra, at 303 U. S. 451, 303 U. S. 452; [Footnote 6] Hague v. CIO, 307 U. S. 496, 307 U. S. 516; [Footnote 7] Schneider v. Page 355 U. S. 324 State, 308 U. S. 147, 308 U. S. 163; [Footnote 8] Largent v. Texas, 318 U. S. 418, 318 U. S. 422; [Footnote 9] Jones v. Opelika, 319 U. S. 103, adopting per curiam on rehearing the dissenting opinion in 316 U. S. 316 U.S. 584, 316 U. S. 600-602; [Footnote 10] Niemotko v. Maryland, 340 U. S. 268, 340 U. S. 271; [Footnote 11] Kunz v. New York, 340 U. S. 290, 340 U. S. 293. [Footnote 12] Page 355 U. S. 325It is undeniable that the ordinance authorized the Mayor and Council of the City of Baxley to grant "or refuse to grant" the required permit in their uncontrolled discretion. It thus makes enjoyment of speech contingent upon the will of the Mayor and Council of the City, although that fundamental right is made free from congressional abridgment by the First Amendment and is protected by the Fourteenth from invasion by state action. For these reasons, the ordinance, on its face, imposes an unconstitutional prior restraint upon the enjoyment of First Amendment freedoms and lays "a forbidden burden upon the exercise of liberty protected by the Constitution." Cantwell v. Connecticut, supra, at 310 U. S. 307. Therefore, the judgment of conviction must fall.Reversed | U.S. Supreme CourtStaub v. City of Baxley, 355 U.S. 313 (1958)Staub v. City of BaxleyNo. 48Argued November 18-19, 1957Decided January 13, 1958355 U.S. 313SyllabusA city ordinance made it an offense to "solicit" citizens of the City to become members of any "organization, union or society" which requires fees or dues from its members without first applying for and receiving from the Mayor and Council a "permit," which they might grant or refuse after considering the character of the applicant, the nature of the organization and its effects upon the general welfare of the citizens. For soliciting applications for membership in a labor union in the private homes of employees without applying for or obtaining such a permit, appellant was convicted of a violation of this ordinance and sentenced to fine or imprisonment, notwithstanding her claim that the ordinance violated her rights under the Federal Constitution. The State Court of Appeals affirmed. It declined to pass on appellant's contention, on the grounds that (1) appellant lacked standing to attack the constitutionality of the ordinance because she had made no attempt to obtain a permit under it, and (2) under state procedure, her attack should have been made against specific sections of the ordinance, and not against the ordinance as a whole.Held:1. The decision of the State Court of Appeals does not rest on an adequate nonfederal ground, and this Court has jurisdiction of this appeal. Pp. 355 U. S. 318-320.(a) Failure to apply for a license under an ordinance which on its face violates the Constitution does not preclude review in this Court of a judgment of conviction under such an ordinance. P. 355 U. S. 319.(b) In the circumstances of this case, appellant's failure to attack specific sections of the ordinance, in accordance with state procedure, is not an adequate nonfederal ground of decision. Pp. 355 U. S. 319-320.2. The ordinance is invalid on its face because it makes enjoyment of the constitutionally guaranteed freedom of speech contingent upon the will of the Mayor and Council, and thereby constitutes a prior restraint upon, and abridges, that freedom, contrary to the Fourteenth Amendment. Pp. 355 U. S. 321-325.94 Ga. App. 18, 93 S.E.2d 375, reversed. Page 355 U. S. 314 |
322 | 1965_387 | MR. JUSTICE STEWART delivered the opinion of the Court.Section 301 of the Labor Management Relations Act, 1947, confers jurisdiction upon the federal district courts over suits upon collective bargaining contracts. [Footnote 1] Nowhere Page 383 U. S. 698 in the Act, however, is there a provision for any time limitation upon the bringing of an action under § 301. The questions presented by this case arise because of the absence of such a provision.The petitioner union and the respondent company were parties to a collective bargaining contract within the purview of § 301. The contract contained a section governing vacations. One clause in this section dealt with payment of accumulated vacation pay, by providing:"Employees who qualified for a vacation in the previous year and whose employment is terminated for any reason before the vacation is taken will be paid that vacation at time of termination."On June 1, 1957, prior to the expiration of the contract, the company terminated the employment of employees covered by the agreement, but it did not pay them any accumulated vacation pay. Since that date, two lawsuits have been brought to recover amounts allegedly due. The first was a class action in early 1958, brought against the company in an Indiana court, but the court ruled that such Page 383 U. S. 699 an action was impermissible under Indiana law. In an attempt to remedy this pleading defect, the former employees assigned their vacation pay claims to a union representative, who then filed an amended complaint, but this form of action, too, was held improper under Indiana law. Thereafter, by further amended complaints, the employees sought to reform and reinstitute the class action, but, once again, the trial court held the complaint insufficient as a matter of state law. The court dismissed the suit in June, 1960, and the judgment of dismissal was affirmed on appeal. Johnson v. Hoosier Cardinal Corp., 134 Ind. 477, 189 N.E.2d 592.Almost four years after the dismissal of that lawsuit by the Indiana trial court, and almost seven years after the employees had left the company, the union filed the present action in the United States District Court for the Southern District of Indiana. On the company's motion, the trial court dismissed the complaint, concluding that the suit was barred by a six-year Indiana statute of limitations. The court regarded this action as based partly upon the written collective bargaining agreement and partly upon the oral employment contract each employee had made, and it held that Indiana would apply to such a hybrid action its six-year statute governing contracts not in writing. Ind.Stat.Ann. § 2-601 (1965 Supp.). 235 F. Supp. 183. The Court of Appeals for the Seventh Circuit affirmed, 346 F.2d 242, and we granted certiorari, 382 U.S. 808.We note at the outset that this action was properly brought by the union under § 301. There is no merit to the contention that a union may not sue to recover wages or vacation pay claimed by its members pursuant to the terms of a collective bargaining contract. Such a suit is among those "[s]uits for violation of contracts between an employer and a labor organization" that § 301 was designed to permit. This conclusion is unimpaired Page 383 U. S. 700 by the fact that each worker's claim may also depend upon the existence of his individual contract of employment. See J. I. Case Co. v. Labor Bard, 321 U. S. 332, 321 U. S. 335-336. In Smith v. Evening News Assn., 371 U. S. 195, we rejected the view, once held for varying reasons by a majority of this Court, Association of Westinghouse Salaried Employees v. Westinghouse Corp., 348 U. S. 437,"that § 301 did not give the . . . courts jurisdiction over a suit brought by a union to enforce employee rights . . . characterized as . . . arising 'from separate hiring contracts between the employer and each employee.'"371 U.S. at 371 U. S. 198. Although the Smith case was brought by an individual worker, there is every reason to recognize the union's standing to vindicate employee rights under a contract the union obtained. Such recognition is fully consistent with the language of § 301(b): "Any . . . labor organization may sue . . . in behalf of the employees whom it represents in the courts of the United States." 61 Stat. 156, 29 U.S.C. § 185(b) (1964 ed.). [Footnote 2] And indeed, the union's standing to vindicate employee rights under § 301 implements no more than the established doctrine that the union's role in the collective bargaining process does not end with the making of the contract. [Footnote 3] Page 383 U. S. 701Since this suit was properly brought under § 301, the question of its timeliness is squarely presented. It is clearly a federal question, for, in § 301 suits, the applicable law is "federal law, which the courts must fashion from the policy of our national labor laws." Textile Workers v. Lincoln Mills, 353 U. S. 448, 353 U. S. 456. Relying upon that statement and upon the coordinate principle that "incompatible doctrines of local law must give way to principles of federal labor law," Teamsters Local v. Lucas Flour Co., 369 U. S. 95, 369 U. S. 102, the union contends that this suit cannot be barred by a statute of limitations enacted by a State. We are urged, instead, to devise a uniform time limitation to close the statutory gap left by Congress. But the teaching of our cases does not require so bald a form of judicial innovation. Lincoln Mills instructs that, in fashioning federal law, the "range of judicial inventiveness will be determined by the nature of the problem." 353 U.S. at 353 U. S. 457. We do not question that there are problems so vital to the implementation of federal labor policy that they will command a high degree of inventiveness from the courts. The problem presented here, however, is not of that nature.It is true that, if state limitations provisions govern § 301 suits, these suits will lack a uniform standard of timeliness. It is also true that the subject matter of § 301 is "peculiarly one that calls for uniform law." Teamsters Local v. Lucas Flour Co., supra, at 369 U. S. 103. Our cases have defined the need for uniformity, however, in terms that are largely inapplicable here:"The possibility that individual contract terms might have different meanings under [two systems of law] would inevitably exert a disruptive influence upon both the negotiation and administration of collective Page 383 U. S. 702 agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was made, the possibility of conflicting substantive interpretation under competing legal systems would tend to stimulate and prolong disputes as to its interpretation. Indeed, the existence of possibly conflicting legal concepts might substantially impede the parties' willingness to agree to contract terms providing for final arbitral or judicial resolution of disputes."". . . The ordering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to promote industrial peace. State law which frustrates the effort of Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy."Teamsters Local v. Lucas Flour Co., 369 U. S. 95, 369 U. S. 103-104.The need for uniformity, then, is greatest where its absence would threaten the smooth functioning of those consensual processes that federal labor law is chiefly designed to promote -- the formation of the collective agreement and the private settlement of disputes under it. For the most part, statutes of limitations come into play only when these processes have already broken down. Lack of uniformity in this area is therefore unlikely to frustrate in any important way the achievement of any significant goal of labor policy. Thus, although a uniform limitations provision for § 301 suits might well Page 383 U. S. 703 constitute a desirable statutory addition, there is no justification for the drastic sort of judicial legislation that is urged upon us. [Footnote 4] See Smith v. Evening News Assn., supra, at 371 U. S. 203 (BLACK, J., dissenting).That Congress did not provide a uniform limitations provision for § 301 suits is not an argument for judicially creating one, unless we ignore the context of this legislative omission. It is clear that Congress gave attention to limitations problems in the Labor Management Relations Act, 1947; it enacted a six months' provision to govern unfair labor practice proceedings, 61 Stat. 146, 29 U.S.C. § 160(b) (1964 ed.), and it did so only after appreciable controversy. [Footnote 5] In this context, and against the background of the relationship between Congress and the courts on the question of limitations provisions, it cannot be fairly inferred that, when Congress left § 301 without a uniform time limitation, it did so in the expectation that the courts would invent one. As early as 1830, this Court held that state statutes of limitations govern the timeliness of federal causes of action unless Page 383 U. S. 704 Congress has specifically provided otherwise. McCluny v. Silliman, 3 Pet. 270, 28 U. S. 277. In 1895, the question was reexamined in another context, but the conclusion remained firm. Campbell v. Haverhill, 155 U. S. 610. Since that time, state statutes have repeatedly supplied the periods of limitations for federal causes of action when federal legislation has been silent on the question. [Footnote 6] E.g., McClaine v. Rankin, 197 U. S. 154, Cope v. Anderson, 331 U. S. 461 (National Bank Act); Chattanooga Foundry v. Atlanta, 203 U. S. 390 (Sherman Act); O'Sullivan v. Felix, 233 U. S. 318 (Civil Rights Act of 1870); Englander Motors, Inc. v. Ford Motor Co., 293 F.2d 802 (C.A. 6th Cir.) (Clayton Act); but see Holmberg v. Armbrecht, 327 U. S. 392 (Federal Farm Loan Act). Yet, when Congress has disagreed with such an interpretation of its silence, it has spoken to overturn it by enacting a uniform period of limitations. E.g., 69 Stat. 283, 15 U.S.C. 15b (1964 ed.) (Clayton Act); 35 U.S.C. § 286 (Patent Act). See also Herget v. Central Bank Co., 324 U. S. 4. Against this background, we cannot take the omission in the present statute as a license to judicially devise a uniform time limitation for § 301 suits. Accordingly, since no federal provision governs, we hold that the timeliness of a § 301 suit, such as the Page 383 U. S. 705 present one, is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations. [Footnote 7] This leaves two subsidiary question to be decided. Which of Indiana's limitations provisions governs? [Footnote 8] Does any tolling principle preserve the timeliness of this action?The union argues that, if the timeliness of this action is to be determined by reference to Indiana statutes, federal law precludes reference to the Indiana six-year provision governing contracts not in writing. Reference must be made instead, it is urged, to the Indiana 20-year provision governing written contracts. Ind.Stat.Ann. § 602 (1965 Supp.). This contention rests on the view that, under federal law, this § 301 suit must be regarded Page 383 U. S. 706 as exclusively bottomed upon the written collective bargaining agreement. We agree that the characterization of this action for the purpose of selecting the appropriate state limitations provision is ultimately a question of federal law. Textile Workers v. Lincoln Mills, supra; McClaine v. Rankin, supra. But there is no reason to reject the characterization that state law would impose unless that characterization is unreasonable or otherwise inconsistent with national labor policy. Cf. Reconstruction Finance Corp. v. Beaver County, 328 U. S. 204, 328 U. S. 210; De Sylva v. Ballentine, 351 U. S. 570, 351 U. S. 580-582.Applying this principle, we cannot agree that federal law requires that this action be regarded as exclusively based upon a written contract. For purposes of § 301 jurisdiction, we have rejected the view that a suit such as this is based solely upon the separate hiring contracts, frequently oral, between the employer and each employee. Smith v. Evening News Assn., supra. It does not follow, however, that the separate contracts of employment may not be taken into account in characterizing the nature of a specific § 301 suit for the purpose of selecting the appropriate state limitations provision. Indeed, as the present case indicates, consideration of the separate contracts for that purpose is entirely acceptable. The petitioner seeks damages based upon an alleged breach of the vacation pay clause in a written collective bargaining agreement. Proof of the breach and of the measure of damages, however, both depend upon proof of the existence and duration of separate employment contracts between the employer and each of the aggrieved employees. Hence, this § 301 suit may fairly be characterized as one not exclusively based upon a written contract.Moreover, the characterization that Indiana law imposes upon this action does not lead to any conflict with Page 383 U. S. 707 federal labor policy. Indeed, to the extent that a policy is manifest in the Labor Management Relations Act, it supports acceptance of the characterization adopted here. The six months' provision governing unfair labor practice proceedings, 61 Stat. 146, 29 U.S.C. § 160(b), suggests that relatively rapid disposition of labor disputes is a goal of federal labor law. Since state statutes of limitations governing contracts not exclusively in writing are generally shorter than those applicable to wholly written agreements, their applicability to § 301 actions comports with that goal. There may, of course, be § 301 actions that can only be characterized fairly as based exclusively upon a written agreement. But since many § 301 actions for wages or other individual benefits will concern employment contracts of the sort involved here, there is no reason to inhibit the achievement of an identifiable goal of labor policy by precluding application of the generally shorter limitations provisions. [Footnote 9]Accordingly, we accept the District Court's application of the six-year Indiana statute of limitations to this action. Cf. Bernhardt v. Polygraphic Co., 350 U. S. 198, 350 U. S. 204-205; Steele v. General Mills, 329 U. S. 433, 329 U. S. 438. Thus, since this federal lawsuit was not filed until almost seven years after the cause of action accrued, the cause Page 383 U. S. 708 is barred by the six-year statute unless that statute was somehow tolled by reason of the particularized circumstances of this case. [Footnote 10]The contention that some tolling principle saves the life of this action was raised for the first time in this Court. In any event, we find the contention without merit. In Burnett v. New York Central R. Co., 380 U. S. 424, we held that the bringing of a timely action under the Federal Employers' Liability Act in a state court, even though venue was improper, served to toll the statute of limitations contained in that Act. The primary underpinning of Burnett, however, is wholly lacking here. As the Court noted in that case, a tolling principle was necessary to implement the national policy of a uniform time bar clearly expressed by Congress when it enacted the FELA limitations provision. 380 U.S. at 380 U. S. 434. Section 301 of the Labor Management Relations Act establishes no such policy of uniformity expressed in a national limitations provision. Moreover, unlike the plaintiff in Burnett, who could no longer bring a timely federal action after the state court dismissed his complaint, the union here had a full three years to bring this lawsuit in federal court after the dismissal of the state court action. [Footnote 11] Under these circumstances, we have no difficulty in concluding that this cause of action expired in June 1963, six years after it arose.Affirmed | U.S. Supreme CourtAutomobile Workers v. Hoosier Cardinal Corp., 383 U.S. 696 (1966)International Union, United Automobile, Aerospace &Agricultural Implement Workers of America (UAW),AFL-CIO v. Hoosier Cardinal Corp.No. 387Argued January 27, 1966Decided March 24, 1966383 U.S. 696SyllabusPetitioner union and respondent company were parties to a collective bargaining agreement which required payment of accumulated vacation pay to qualified employees upon termination of their employment. In June, 1957, the company discharged employees covered by the agreement without such payment. An action brought in the Indiana courts to recover the amounts allegedly due was dismissed in 1960 on the ground that the complaint was insufficient under state law. Almost four years later, and almost seven years after the employees' discharge, the union brought this action in the Federal District Court under § 301 of the Labor Management Relations Act, 1947. The Act contains no time limitation upon the bringing of an action under § 301. The District Court viewed the action as based partly on the collective bargaining agreement and partly on the oral contract of each employee, and held that Indiana, in such case, would apply its six-year statute of limitations governing contracts not in writing. The complaint was accordingly dismissed as untimely, and the Court of Appeals affirmed.Held:1. A union may properly sue under § 301 to recover wages or vacation pay claimed by its members pursuant to a collective bargaining agreement. Smith v. Evening News Assn., 371 U. S. 195, 371 U. S. 198. Pp. 383 U. S. 699-700.2. The timeliness of a suit under § 301, there being no governing federal provision, is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations. Pp. 383 U. S. 701-704.(a) The fact that Congress did not provide a uniform limitations provision for § 301 suits does not require that the courts invent one. P. 383 U. S. 703.(b) State statutes have repeatedly supplied the periods of limitation for federal causes of action when federal legislation has been silent. Pp. 383 U. S. 703-704. Page 383 U. S. 6973. The characterization of this suit as one not exclusively based on a written contract, and the application of the Indiana six-year statute of limitations, do not conflict with federal labor policy. Pp. 383 U. S. 705-707.4. The statute of limitations was not tolled in this case by the prior litigation. Burnett v. New York Central R. Co., 380 U. S. 424, distinguished. Pp. 383 U. S. 707-708.346 F.2d 242, affirmed. |
323 | 1988_88-333 | CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.James Lewis Smith pleaded guilty to charges of burglary and rape. In exchange for the plea, a sodomy charge was dropped. Later, Smith succeeded in having his guilty plea vacated. He went to trial on the three original charges, was convicted on each, and received a longer sentence on the burglary conviction than had been given after his guilty plea. The Alabama Supreme Court held that this increased sentence created a presumption of vindictiveness similar to that set forth in North Carolina v. Pearce, 395 U. S. 711 (1969). We hold that no presumption of vindictiveness arises when the first sentence was based upon a guilty plea, and the second sentence follows a trial.In 1985, an Alabama grand jury indicted Smith for burglary, rape, and sodomy. All the charges related to a single Page 490 U. S. 796 assault. Smith agreed to plead guilty to the burglary and rape charges in exchange for the State's agreement to dismiss the sodomy charge. The trial court granted the State's motion to dismiss the sodomy charge, accepted respondent's guilty plea, and sentenced him to concurrent terms of 30 years' imprisonment on each conviction. Later, respondent moved to withdraw his guilty plea, claiming that he had not entered it knowingly and voluntarily. The trial court denied this motion, but the Alabama Court of Criminal Appeals reversed, finding that respondent had not been properly informed of the penalties associated with the crimes to which he had pleaded guilty. 494 So. 2d 182 (1986).The case was reassigned to the same trial judge. The State moved to reinstate the charge of first-degree sodomy; the trial court granted that motion, and respondent went to trial on all three original charges. At trial, the victim testified that respondent had broken into her home in the middle of the night, clad only in his underwear and a ski mask and wielding a kitchen knife. Holding the knife to her chest, he had raped and sodomized her repeatedly and forced her to engage in oral sex with him. The attack, which lasted for more than an hour, occurred in the victim's own bedroom, just across the hall from the room in which her three young children lay sleeping. The State also offered respondent's post-arrest statement, in which he admitted many of the details of the offenses. Respondent later took the stand and repudiated his post-arrest statement, testifying instead that he had been in bed with his girlfriend at the time the attack took place.The jury returned a verdict of guilty on all three counts. This time, the trial judge imposed a term of life imprisonment for the burglary conviction, plus a concurrent term of life imprisonment on the sodomy conviction and a consecutive term of 150 years' imprisonment on the rape conviction. The trial court explained that it was imposing a harsher sentence Page 490 U. S. 797 than it had imposed following respondent's guilty plea because the evidence presented at trial, of which it had been unaware at the time it imposed sentence on the guilty plea, convinced it that the original sentence had been too lenient. See App. to Pet. for Cert. 28-30. As the court explained, at the time it imposed sentence on the guilty plea, it had heard only "[respondent's] side of the story"; whereas now it "has had a trial and heard all of the evidence," including testimony that respondent had raped the victim at least five times, forced her to engage in oral sex with him, and threatened her life with a knife. Ibid. The court stated that this new information about the nature of respondent's crimes and their impact on the victim, together with its observations of his "mental outlook on [the offenses] and [his] position during the trial," convinced it that it was "proper to increase the sentence beyond that which was given to [him] on the plea bargain." Id. at 30.The Alabama Court of Criminal Appeals affirmed respondent's convictions, as well as the life sentences imposed for burglary and sodomy, but remanded the rape conviction for resentencing. The Supreme Court of Alabama then granted respondent's request for review of the burglary sentence, and reversed and remanded by a divided vote. Ex parte Smith, 557 So. 2d 13 (1988). The majority held that, under our decision in North Carolina v. Pearce, supra, there can be no increase in sentence "upon reconviction at [a] second trial after the first conviction has been overturned on appeal and remanded for a new trial," unless the increase is justified by "events subsequent to the first trial.'" 557 So. 2d at 15. Because the majority thought the trial court had increased respondent's sentence for the burglary conviction based on new information about events occurring prior to the imposition of the original sentence -- e.g., new information about the nature of the crime and its effect on the victim -- the majority held that Pearce required it to set aside that sentence. Page 490 U. S. 798The three dissenting Justices argued that the Pearce presumption of vindictiveness did not apply where the original sentence is entered after a guilty plea. Id. at 16. In their view, a defendant "should not be allowed to receive sentence concessions in return for a guilty plea and then, after a successful attack on that plea, bind the State to its original sentencing bargain if he is later convicted after a trial." Id. at 17. Were it otherwise, they argued, a defendant "could go to trial and chance an acquittal, knowing he could receive a sentence no harsher than he was originally given." Ibid. [Footnote 1]Because of the conflicting results reached by the lower courts on the question whether the Pearce presumption of vindictiveness applies when a sentence imposed after trial is greater than that previously imposed after a guilty plea, [Footnote 2] we granted certiorari, 488 U.S. 1003 (1989), and now reverse.While sentencing discretion permits consideration of a wide range of information relevant to the assessment of punishment, see Williams v. New York, 337 U. S. 241, 337 U. S. 245-249 (1949), we have recognized it must not be exercised with the purpose of punishing a successful appeal. Pearce, 395 U.S. at 395 U. S. 723-725."Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial."Id. at 395 U. S. 725."In order to assure the absence of such a motivation, we have concluded that, whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for him doing so must affirmatively appear."Id. at 395 U. S. 726. Otherwise, a presumption Page 490 U. S. 799 arises that a greater sentence has been imposed for a vindictive purpose -- a presumption that must be rebutted by "objective information . . . justifying the increased sentence.'" Texas v. McCullough, 475 U. S. 134, 475 U. S. 142 (1986) (quoting United States v. Goodwin, 457 U. S. 368, 457 U. S. 374 (1982)).While the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption of vindictiveness "do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial." Texas v. McCullough, supra, at 475 U. S. 138. As we explained in Texas v. McCullough, "the evil the [Pearce] Court sought to prevent" was not the imposition of "enlarged sentences after a new trial," but "vindictiveness of a sentencing judge." Ibid. See also Chaffin v. Stynchcombe, 412 U. S. 17, 412 U. S. 25 (1973) (the Pearce presumption was not designed to prevent the imposition of an increased sentence on retrial "for some valid reason associated with the need for flexibility and discretion in the sentencing process," but was "premised on the apparent need to guard against vindictiveness in the resentencing process"). Because the Pearce presumption "may operate in the absence of any proof of an improper motive, and thus . . . block a legitimate response to criminal conduct," United States v. Goodwin, supra, at 457 U. S. 373, we have limited its application, like that of "other judicially created means of effectuating the rights secured by the [Constitution],'" to circumstances "where its `objectives are thought most efficaciously served,'" Texas v. McCullough, supra, at 475 U. S. 138, quoting Stone v. Powell, 428 U. S. 465, 428 U. S. 482, 428 U. S. 487 (1976). Such circumstances are those in which there is a "reasonable likelihood," United States v. Goodwin, supra, at 457 U. S. 373, that the increase in sentence is the product of actual vindictiveness Page 490 U. S. 800 on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness, see Wasman v. United States, 468 U. S. 559, 468 U. S. 569 (1984).In Colten v. Kentucky, 407 U. S. 104 (1972), for example, we refused to apply the presumption when the increased sentence was imposed by the second court in a two-tier system which gave a defendant convicted of a misdemeanor in an inferior court the right to trial de novo in a superior court. We observed that the trial de novo represented a "completely fresh determination of guilt or innocence" by a court that was not being "asked to do over what it thought it had already done correctly." Id. at 407 U. S. 117. If the de novo trial resulted in a greater penalty, we said that "it no more follows that such a sentence is a vindictive penalty . . . than that the inferior court imposed a lenient penalty." Ibid. Consequently, we rejected the proposition that greater penalties on retrial were explained by vindictiveness "with sufficient frequency to warrant the imposition of a prophylactic rule." Id. at 407 U. S. 116. Similarly, in Chaffin v. Stynchcombe, 412 U. S. 17 (1973), we held that no presumption of vindictiveness arose when a second jury, on retrial following a successful appeal, imposed a higher sentence than a prior jury. We thought that a second jury was unlikely to have a "personal stake" in the prior conviction or to be "sensitive to the institutional interests that might occasion higher sentences." [Footnote 3] Id. at 412 U. S. 26-28. Page 490 U. S. 801We think the same reasoning leads to the conclusion that, when a greater penalty is imposed after trial than was imposed after a prior guilty plea, the increase in sentence is not more likely than not attributable to the vindictiveness on the part of the sentencing judge. Even when the same judge imposes both sentences, the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial. A guilty plea must be both "voluntary" and "intelligent," Boykin v. Alabama, 395 U. S. 238, 395 U. S. 242 (1969), because it "is the defendant's admission in open court that he committed the acts charged in the indictment," Brady v. United States, 397 U. S. 742, 397 U. S. 748 (1970). But the sort of information which satisfies this requirement will usually be far less than that brought out in a full trial on the merits.As this case demonstrates, supra, at 490 U. S. 796-797, in the course of the proof at trial, the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant's conduct during trial may give the judge insights into his moral character and suitability for rehabilitation. Supra, at 490 U. S. 797. See United States v. Grayson, 438 U. S. 41, 438 U. S. 53 (1978) (sentencing authority's perception of the truthfulness of a defendant testifying on his own behalf may be considered in sentencing). Finally, after trial, the factors that may have indicated leniency as consideration for the guilty plea are no longer present. See Brady v. United States, supra, at 397 U. S. 752. Here, too, although the same judge who sentenced following the guilty plea also imposes sentence following trial, in conducting the trial the court is not simply "do[ing] over what it thought it had already done correctly." Colten, supra, at Page 490 U. S. 802 407 U. S. 117. Each of these factors distinguishes the present case, and others like it, from cases like Pearce. There, the sentencing judge who presides at both trials can be expected to operate in the context of roughly the same sentencing considerations after the second trial as he does after the first; any unexplained change in the sentence is therefore subject to a presumption of vindictiveness. In cases like the present one, however, we think there are enough justifications for a heavier second sentence that it cannot be said to be more likely than not that a judge who imposes one is motivated by vindictiveness.Our conclusion here is not consistent with Simpson v. Rice, the companion case to North Carolina v. Pearce. In Simpson v. Rice, the complained-of sentence followed trial after Rice had successfully attacked his previous guilty plea. 395 U.S. at 395 U. S. 714. We found that a presumption of vindictiveness arose when the State offered "no evidence attempting to justify the increase in Rice's original sentences. . . ." Id. at 395 U. S. 726. With respect, it does not appear that the Court gave any consideration to a possible distinction between the Pearce case, in which differing sentences were imposed after two trials, and the Rice case, in which the first sentence was entered on a guilty plea.The failure in Simpson v. Rice to note the distinction just described stems in part from that case's having been decided before some important developments in the constitutional law of guilty pleas. A guilty plea may justify leniency, Brady v. United States, supra; a prosecutor may offer a "recommendation of a lenient sentence or a reduction of charges" as part of the plea bargaining process, Bordenkircher v. Hayes, 434 U. S. 357, 434 U. S. 363 (1978), and we have upheld the prosecutorial practice of threatening a defendant with increased charges if he does not plead guilty, and following through on that threat if the defendant insists on his right to stand trial, ibid.; we have recognized that the same mutual Page 490 U. S. 803 interests that support the practice of plea bargaining to avoid trial may also be pursued directly by providing for a more lenient sentence if the defendant pleads guilty, Corbitt v. New Jersey, 439 U. S. 212, 439 U. S. 221-223 (1978).Part of the reason for now reaching a conclusion different from that reached in Simpson v. Rice, therefore, is the later development of this constitutional law relating to guilty pleas. Part is the Court's failure in Simpson to note the greater amount of sentencing information that a trial generally affords as compared to a guilty plea. Believing, as we do, that there is no basis for a presumption of vindictiveness where a second sentence imposed after a trial is heavier than a first sentence imposed after a guilty plea, we overrule Simpson v. Rice, supra, to that extent. Respondent contends that there is evidence to support a finding of actual vindictiveness on the part of the sentencing judge in this case. This is not the question upon which we granted certiorari, and we decline to reach it here, although it may be open to respondent on our remand to the Supreme Court of Alabama.The judgment of the Supreme Court of Alabama is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.It is so ordered | U.S. Supreme CourtAlabama v. Smith, 490 U.S. 794 (1989)Alabama v. SmithNo. 88-333Argued April 24, 1989Decided June 12, 1989490 U.S. 794SyllabusAn Alabama grand jury indicted respondent for burglary, rape, and sodomy, all related to a single assault. He agreed to plead guilty to the burglary and rape charges in exchange for the State's agreement to dismiss the sodomy charge. The trial judge granted the State's motion to dismiss the sodomy charge, accepted respondent's guilty plea, and sentenced him to concurrent terms of 30 years' imprisonment on each conviction. Later, respondent succeeded in having his guilty plea vacated and went to trial on the three original charges before the same trial judge. The jury found him guilty on all three counts. This time, the judge imposed a term of life imprisonment for the burglary conviction, plus a concurrent term of life imprisonment on the sodomy conviction and a consecutive term of 150 years' imprisonment on the rape conviction. The judge explained that he was imposing a harsher sentence than that imposed following the guilty plea because the evidence presented at trial, of which he had been unaware at the time sentence was imposed on the guilty plea, convinced him that the original sentence had been too lenient. The Alabama Court of Criminal Appeals affirmed the convictions and the life sentence for burglary and sodomy, but remanded the rape conviction for resentencing. The Alabama Supreme Court granted respondent's request for review of the burglary sentence and reversed and remanded, holding that the increased sentence created a presumption of vindictiveness similar to that set forth in North Carolina v. Pearce, 395 U. S. 711.Held: The Pearce presumption of vindictiveness does not apply when a sentence imposed after trial is greater than that previously imposed after a guilty plea. Simpson v. Rice, decided with North Carolina v. Pearce, supra, overruled. Pp. 490 U. S. 798-803.(a) Application of that presumption is limited to circumstances in which there is a "reasonable likelihood" that an unexplained increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the defendant has the burden of proving actual vindictiveness without aid of a presumption. Pp. 490 U. S. 798-800.(b) In cases like the present one, where the relevant sentencing information available to the judge after a guilty plea will usually be considerably less than that available after a trial, and where leniency that Page 490 U. S. 795 may have been shown in response to a guilty plea is no longer appropriate, there are enough justifications for a heavier second sentence that it cannot be said to be more likely than not that the judge who imposes such a sentence is motivated by vindictiveness. Pp. 490 U. S. 800-803.557 So. 2d 13, reversed and remanded.REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, post, p. 490 U. S. 803. |
324 | 1967_133 | MR. JUSTICE WHITE delivered the opinion of the Court.After the convictions of petitioners had been affirmed, and while their cases were pending here, it was revealed that the United States had engaged in electronic surveillance which might have violated their Fourth Amendment rights and tainted their convictions. A remand to the District Court being necessary in each case for adjudication in the first instance, the questions now before us relate to the standards and procedures to be followed by the District Court in determining whether any of the Government's evidence supporting these convictions was the product of illegal surveillance to which any of the petitioners are entitled to object.No. 133, O.T., 1967. Petitioners Alderman and Alderisio, along with Ruby Kolod, now deceased, were convicted of conspiring to transmit murderous threats in interstate commerce, 18 U.S.C. §§ 371, 875(c). Their convictions were affirmed on appeal, 371 F.2d 983 (C.A. 10th Cir.1967), and this Court denied certiorari, 389 U.S. 834 (1967). In their petition for rehearing, petitioners alleged they had recently discovered that Alderisio's place of business in Chicago had been the subject of electronic surveillance by the Government. Reading the response of the Government to admit that Alderisio's conversations had been overheard by unlawful Page 394 U. S. 168 electronic eavesdropping, [Footnote 1] we granted the petition for rehearing over the objection of the United States that "no overheard conversation in which any of the petitioners participated is arguably relevant to this prosecution." In our per curiam opinion, 390 U. S. 390 U.S. 136 (1968), we refused to accept the ex parte determination of relevance by the Department of Justice in lieu of adversary proceedings in the District Court, vacated the judgment of the Court of Appeals, and remanded the case to the District Court for further proceedings.The United States subsequently filed a motion to modify that order. Although accepting the Court's order insofar as it required judicial determination of whether any of the prosecution's evidence was the product of illegal surveillance, the United States urged that, in order to protect innocent third parties participating or referred to in irrelevant conversations overheard by the Government, surveillance records should first be subjected to in camera inspection by the trial judge, who would then turn over to the petitioners and their counsel only those materials arguably relevant to their prosecution. Petitioners opposed the motion, and the matter was argued before the Court last Term. We then set the case down for reargument at the opening of the current Term, 392 U. S. 919 (1968), the attention of the parties being directed to the disclosure issue and the question of Page 394 U. S. 169 standing to object to the Government's use of the fruits of illegal surveillance. [Footnote 2]Nos. 11 and 197. Both petitioners were convicted of conspiring to transmit to the Soviet Union information relating to the national defense of the United States, 18 U.S.C. §§ 794(a), (c), and of conspiring to violate 18 U.S.C. § 951 by causing Butenko to act as an agent of the Soviet Union without prior notification to the Secretary of State. Butenko was also convicted of a substantive offense under 18 U.S.C. § 951. The Court of Appeals affirmed all but Ivanov's conviction on the second conspiracy count. 384 F.2d 554 (C.A.3d Cir.1967). Petitions for certiorari were then filed in this Court, as was a subsequent motion to amend the Page 394 U. S. 170 Ivanov petition to raise an issue similar to that which was presented in No. 133, O.T. 1967. [Footnote 3] Following the first argument in Alderman (sub nom. Kolod v. United States), the petitions for certiorari of both Ivanov and Butenko were granted, limited to questions nearly identical to those involved in the reargument of the Alderman case. [Footnote 4] Page 394 U. S. 171IThe exclusionary rule fashioned in Weeks v. United States, 232 U. S. 383 (1914), and Mapp v. Ohio, 367 U. S. 643 (1961), excludes from a criminal trial any evidence seized from the defendant in violation of his Fourth Amendment rights. Fruits of such evidence are excluded as well. Silverthorne Lumber Co. v. United States, 251 U. S. 385, 251 U. S. 391-392 (1920). Because the Amendment now affords protection against the uninvited ear, oral statements, if illegally overheard, and their fruits are also subject to suppression. Silverman v. United States, 365 U. S. 505 (1961); Katz v. United States, 389 U. S. 347 (1967)In Mapp and Weeks, the defendant against whom the evidence was held to be inadmissible was the victim of the search. However, in the cases before us, each petitioner demands retrial if any of the evidence used to convict him was the product of unauthorized surveillance, regardless of whose Fourth Amendment rights the surveillance violated. At the very least, it is urged that, if evidence is inadmissible against one defendant or conspirator because tainted by electronic surveillance illegal as to him, it is also inadmissible against his codefendant or coconspirator.This expansive reading of the Fourth Amendment and of the exclusionary rule fashioned to enforce it is admittedly inconsistent with prior cases, and we reject it. The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated Page 394 U. S. 172 by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing.Thus, in Goldstein v. United States, 316 U. S. 114 (1942), testimony induced by disclosing to witnesses their own telephonic communications intercepted by the Government contrary to 47 U.S.C. § 605 was held admissible against their coconspirators. The Court equated the rule under § 605 with the exclusionary rule under the Fourth Amendment. [Footnote 5] Wong Sun v. United States, 371 U. S. 471 (1963), came to like conclusions. There, two defendants were tried together; narcotics seized from a third party were held inadmissible against one defendant because they were the product of statements made by him at the time of his unlawful arrest. But the same narcotics were found to be admissible against the codefendant because"[t]he seizure of this Page 394 U. S. 173 heroin invaded no right of privacy of person or premises which would entitle [him] to object to its use at his trial. Cf. Goldstein v. United States, 316 U. S. 114."Wong Sun v. United States, supra, at 371 U. S. 492.The rule is stated in Jones v. United States, 362 U. S. 257, 362 U. S. 261 (1960):"In order to qualify as a 'person aggrieved by an unlawful search and seizure,' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. . . .""Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy. [Footnote 6]"This same principle was twice acknowledged last Term. Mancusi v. DeForte, 392 U. S. 364 (1968); Simmons v. United States, 390 U. S. 377 (1968). [Footnote 7] Page 394 U. S. 174We adhere to these cases and to the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. Simmons v. United States, 390 U. S. 377 (1968); Jones v. United States, 362 U. S. 257 (1960). Cf. Tileston v. Ullman, 318 U. S. 44, 318 U. S. 46 (1943). None of the special circumstances which prompted NAACP v. Alabama, 357 U. S. 449 (1958), and Barrows v. Jackson, 346 U. S. 249 (1953), are present here. There is no necessity to exclude evidence against one defendant in order to protect the rights of another. No rights of the victim of an illegal search are at stake when the evidence is offered against some other party. The victim can, and very probably will, object for himself when and if it becomes important for him to do so.What petitioners appear to assert is an independent constitutional right of their own to exclude relevant and probative evidence because it was seized from another in violation of the Fourth Amendment. But we think there is a substantial difference for constitutional purposes between preventing the incrimination of a defendant through the very evidence illegally seized from him and suppressing evidence on the motion of a party who cannot claim this predicate for exclusion.The necessity for that predicate was not eliminated by recognizing and acknowledging the deterrent aim of the rule. See Linkletter v. Walker, 381 U. S. 618 (1965); Elkins v. United States, 364 U. S. 206 (1960). Neither those cases nor any others hold that anything which deters illegal searches is thereby commanded by the Fourth Amendment. The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But we are not convinced that Page 394 U. S. 175 the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.We do not deprecate Fourth Amendment rights. The security of persons and property remains a fundamental value which law enforcement officers must respect. Nor should those who flout the rules escape unscathed. In this respect, we are mindful that there is now a comprehensive statute making unauthorized electronic surveillance a serious crime. [Footnote 8] The general rule under the statute is that official eavesdropping and wiretapping are permitted only with probable cause and a warrant. Without experience showing the contrary, we should not assume that this new statute will be cavalierly disregarded or will not be enforced against transgressors.Of course, Congress or state legislatures may extend the exclusionary rule and provide that illegally seized evidence is inadmissible against anyone for any purpose. [Footnote 9] But, for constitutional purposes, we are not now Page 394 U. S. 176 inclined to expand the existing rule that unlawful wiretapping or eavesdropping, whether deliberate or negligent, can produce nothing usable against the person aggrieved by the invasion.IIIn these cases, therefore, any petitioner would be entitled to the suppression of government evidence originating in electronic surveillance violative of his own Fourth Amendment right to be free of unreasonable searches and seizures. Such violation would occur if the United States unlawfully overheard conversations of a petitioner himself or conversations occurring on his premises, whether or not he was present or participated in those conversations. The United States concedes this much, and agrees that, for purposes of a hearing to determine whether the Government's evidence is tainted by illegal surveillance, the transcripts or recordings of the overheard conversations of any petitioner or of third persons on his premises must be duly and properly examined in the District Court.MR. JUSTICE HARLAN and MR. JUSTICE STEWART, who are in partial dissent on this phase of the case, object to our protecting the homeowner against the use of third-party conversations overheard on his premises by an unauthorized surveillance. Their position is that, unless the conversational privacy of the homeowner himself is invaded, there is no basis in the Fourth Amendment for excluding third-party conversations overheard on his premises. We cannot agree. If the police make an unwarranted search of a house and seize tangible property belonging to third parties -- even a transcript of a third-party conversation -- the homeowner may object to Page 394 U. S. 177 its use against him not because he had any interest in the seized items as "effects" protected by the Fourth Amendment, but because they were the fruits of an unauthorized search of his house, which is itself expressly protected by the Fourth Amendment. [Footnote 10] Nothing seen or found on the premises may legally form the basis for an arrest or search warrant or for testimony at the homeowner's trial, since the prosecution would be using the fruits of a Fourth Amendment violation. Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920); Johnson v. United States, 333 U. S. 10 (1948); Wong Sun v. United States, 371 U. S. 471 (1963).The Court has characteristically applied the same rule where an unauthorized electronic surveillance is carried out by physical invasion of the premises. This much the dissent frankly concedes. Like physical evidence which might be seized, overheard conversations are fruits Page 394 U. S. 178 of an illegal entry, and are inadmissible in evidence. Silverman v. United States, 365 U. S. 505 (1961); Wong Sun v. United States, supra. When Silverman was decided, no right of conversational privacy had been recognized as such; the right vindicated in that case was the Fourth Amendment right to be secure in one's own home. In Wong Sun, the words spoken by Blackie Toy when the police illegally entered his house were not usable against him because they were the fruits of a physical invasion of his premises which violated the Fourth Amendment.Because the Court has now decided that the Fourth Amendment protects a person's private conversations as well as his private premises, Katz v. United States, 389 U. S. 347 (1967), the dissent would discard the concept that private conversations overheard through an illegal entry into a private place must be excluded as the fruits of a Fourth Amendment violation. Although officers without a valid warrant may not search a house for physical evidence or incriminating information, whether the owner is present or away, the dissent would permit them to enter that house without consent and without a warrant, install a listening device, and use any overheard third-party conversations against the owner in a criminal case, in spite of the obvious violation of his Fourth Amendment right to be secure in his own dwelling. Even if the owner is present on his premises during the surveillance, he would have no complaint unless his own conversations were offered or used against him. Information from a telephone tap or from the microphone in the kitchen or in the rooms of guests or children would be freely usable as long as the homeowner's own conversations are not monitored and used against him. Indeed, if the police, instead of installing a device, secreted themselves on the premises, they could neither testify about nor use against the owner anything they Page 394 U. S. 179 saw or carried away, but would be free to use against him everything they overheard except his own conversations. And should police overhear third parties describing narcotics which they have discovered in the owner's desk drawer, the police could not then open the drawer and seize the narcotics, but they could secure a warrant on the basis of what they had heard and forthwith seize the narcotics pursuant to that warrant. [Footnote 11]These views we do not accept. We adhere to the established view in this Court that the right to be secure in one's house against unauthorized intrusion is not limited to protection against a policeman viewing or seizing tangible property -- "papers" and "effects." Otherwise, the express security for the home provided by the Fourth Amendment would approach redundancy. The rights of the owner of the premises are as clearly Page 394 U. S. 180 invaded when the police enter and install a listening device in his house as they are when the entry is made to undertake a warrantless search for tangible property, and the prosecution as surely employs the fruits of an illegal search of the home when it offers overheard third-party conversations as it does when it introduces tangible evidence belonging not to the homeowner, but to others. Nor do we believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home or to overrule the existing doctrine, recognized at least since Silverman, that conversations as well as property are excludable from the criminal trial when they are found to be the fruits of an illegal invasion of the home. It was noted in Silverman, 365 U.S. at 365 U. S. 511-512, that"This Court has never held that a federal officer may, without warrant and without consent, physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard."The Court proceeded to hold quite the contrary. We take the same course here.IIIThe remaining aspect of these cases relates to the procedures to be followed by the District Court in resolving the ultimate issue which will be before it -- whether the evidence against any petitioner grew out of his illegally overheard conversations or conversations occurring on his premises. [Footnote 12] The question as stated in Wong Sun v. United States, 371 U. S. 471, 371 U. S. 488 (1963), is"'whether, Page 394 U. S. 181 granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or, instead, by means sufficiently distinguishable to be purged of the primary taint.'"See also Nardone v. United States, 308 U. S. 338, 308 U. S. 341 (1939).The Government concedes that it must disclose to petitioners any surveillance records which are relevant to the decision of this ultimate issue. And it recognizes that this disclosure must be made even though attended by potential danger to the reputation or safety of third parties or to the national security -- unless the United States would prefer dismissal of the case to disclosure of the information. However, the Government contends that it need not be put to this "disclose or dismiss" option in the instant cases, because none of the information obtained from its surveillance is "arguably relevant" to petitioners' convictions, in the sense that none of the overheard conversations arguably underlay any of the evidence offered in these cases. Although not now insisting that its own evaluation of relevance should be accepted automatically and without judicial scrutiny, the United States urges that the records of the specified conversations be first submitted to the trial judge for an in camera examination. Any record found arguably relevant by the judge would be turned over to the petitioner whose Fourth Amendment rights have been violated, and that petitioner would then have the opportunity to use the disclosed information in his attempt to show that the Government has used tainted evidence to convict him. Material not arguably relevant would not be disclosed to any petitioner. [Footnote 13] Page 394 U. S. 182Although this may appear a modest proposal, especially since the standard for disclosure would be "arguable" relevance, we conclude that surveillance records as to which any petitioner has standing to object should be turned over to him without being screened in camera by the trial judge. Admittedly, there may be much learned from an electronic surveillance which ultimately contributes nothing to probative evidence. But winnowing this material from those items which might have made a substantial contribution to the case against a petitioner is a task which should not be entrusted wholly to the court in the first instance. It might be otherwise if the trial judge had only to place the transcript or other record of the surveillance alongside the record evidence and compare the two for textual or substantive similarities. Even that assignment would be difficult enough for the trial judge to perform unaided. But a good deal more is involved. An apparently innocent phrase, a chance remark, a reference to what appears to be a neutral person or event, the identity of a caller or the individual on the other end of a telephone, or even the manner of speaking or using words may have special significance to one who knows the more intimate facts of an accused's life. And yet that information may be wholly colorless and devoid of meaning to one less well acquainted with all relevant circumstances. Unavoidably, this is a matter of judgment, but, in our view, the task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the Government's case. [Footnote 14] Page 394 U. S. 183The United States concedes that, when an illegal search has come to light, it has the ultimate burden of persuasion to show that its evidence is untainted. But, at the same time, petitioners acknowledge that they must go forward with specific evidence demonstrating taint."[T]he trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin."Nardone v. United States, 308 U. S. 338, 308 U. S. 341 (1939). With this task ahead of them, and if the hearings are to be more than a formality and petitioners not left entirely to reliance on government testimony, there should be turned over to them the records of those overheard conversations which the Government was not entitled to use in building its case against them.Adversary proceedings are a major aspect of our system of criminal justice. Their superiority as a means for attaining justice in a given case is nowhere more evident than in those cases, such as the ones at bar, where an issue must be decided on the basis of a large volume of Page 394 U. S. 184 factual materials, and after consideration of the many and subtle interrelationships which may exist among the facts reflected by these records. As the need for adversary inquiry is increased by the complexity of the issues presented for adjudication, and by the consequent inadequacy of ex parte procedures as a means for their accurate resolution, the displacement of well informed advocacy necessarily becomes less justifiable.Adversary proceedings will not magically eliminate all error, but they will substantially reduce its incidence by guarding against the possibility that the trial judge, through lack of time or unfamiliarity with the information contained in and suggested by the materials, will be unable to provide the scrutiny which the Fourth Amendment exclusionary rule demands. It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to national security or third-party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally and which it admits, or which a judge would find, is arguably relevant to the evidence offered against the defendant. [Footnote 15]We think this resolution will avoid an exorbitant expenditure of judicial time and energy and will not unduly prejudice others or the public interest. It must be remembered that disclosure will be limited to the transcripts of a defendant's own conversations and of those which took place on his premises. It can be safely Page 394 U. S. 185 assumed that much of this he will already know, and disclosure should therefore involve a minimum hazard to others. In addition, the trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect. See Fed.Rule Crim.Proc. 16(e). We would not expect the district courts to permit the parties or counsel to take these orders lightly.None of this means that any defendant will have an unlimited license to rummage in the files of the Department of Justice. Armed with the specified records of overheard conversations and with the right to cross-examine the appropriate officials in regard to the connection between those records and the case made against him, a defendant may need or be entitled to nothing else. Whether this is the case or not must be left to the informed discretion, good sense, and fairness of the trial judge. See Nardone v. United States, 308 U. S. 338, 308 U. S. 341-342 (1939). [Footnote 16]IV.Accordingly, in No. 133, O.T. 1967, the motion of the United States is denied to the extent that it requests an initial in camera inspection of the fruits of any unlawful Page 394 U. S. 186 surveillance and the withholding of those portions of the materials which the trial judge might deem irrelevant to these convictions. Primarily because of our decision with respect to standing, however, the order and judgment of January 29, 1968, are withdrawn. The order denying to petitioners a writ of certiorari is set aside. The petition for rehearing is granted, and the petition for certiorari is granted as to both Alderisio and Alderman. The judgments of the Court of Appeals for the Tenth Circuit in No. 133, O.T. 1967, and the judgments of the Court of Appeals for the Third Circuit in Nos. 11 and 197 are vacated, and each of the cases is remanded to the District Court for further proceedings consistent with this opinion, that is, for a hearing, findings, and conclusions (1) on the question of whether with respect to any petitioner there was electronic surveillance which violated his Fourth Amendment rights, and (2) if there was such surveillance with respect to any petitioner, on the nature and relevance to his conviction of any conversations which may have been overheard through that surveillance. The District Court should confine the evidence presented by both sides to that which is material to the question of the possible violation of a petitioner's Fourth Amendment rights, to the content of conversations illegally overheard by surveillance which violated those rights and to the relevance of such conversations to the petitioner's subsequent conviction. The District Court will make such findings of fact on those questions as may be appropriate in light of the further evidence and of the entire existing record. If the District Court decides on the basis of such findings (1) that there was electronic surveillance with respect to one or more petitioners but not any which violated the Fourth Amendment, or (2) that, although there was a surveillance in violation of one or more of the petitioners' Fourth Amendment rights, the conviction of such petitioner was not tainted Page 394 U. S. 187 by the use of evidence so obtained, it will enter new final judgments of conviction based on the existing record as supplemented by its further findings, thereby preserving to all affected parties the right to seek further appropriate appellate review. If, on the other hand, the District Court concludes in such further proceedings that there was a violation of any petitioner's Fourth Amendment rights and that the conviction of the petitioner was tainted by such violation, it would then become its duty to accord such petitioner a new trial.Vacated and remanded | U.S. Supreme CourtAlderman v. United States, 394 U.S. 165 (1969)Alderman v. United StatesNo. 133, Oct. Term, 1967Certiorari denied October 9, 1967Rehearing and certiorari grantedand case decided January 29, 1968Motion to modify argued May 2, 1968Reargued October 14, 1968Order of January 29, 1968, withdrawn, rehearing andcertiorari granted, and case decided March 10, 1969.*394 U.S. 165SyllabusAfter petitioners in No. 133, O.T., 1967, were convicted of conspiring to transmit murderous threats in interstate commerce, they discovered that one petitioner's place of business had been subject to electronic surveillance by the Government. This Court refused to accept the Government's ex parte determination that "no overheard conversation in which any of the petitioners participated is arguably relevant to this prosecution," and vacated and remanded the case for further proceedings (390 U.S. 136). The Government moved to modify the order, urging that surveillance records should be subjected to in camera inspection by the trial judge, who would then turn over to petitioners only those materials arguably relevant to their prosecution. In Nos. 11 and 197, petitioners, who were convicted of national security violations, raised similar questions relating to the use of eavesdropped information.Held:1. Suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, and not those who are aggrieved solely by the introduction of damaging evidence. Thus, codefendants and coconspirators have no special standing, and cannot prevent the admission against them of information which has been obtained through electronic surveillance which is illegal against another. Pp. 394 U. S. 171-176.2. A petitioner would be entitled to the suppression of evidence violative of the Fourth Amendment where the Government unlawfully overheard conversations of the petitioner himself, or where the Page 394 U. S. 166 conversations occurred on his premises, whether or not he was present or participated therein. Silverman v. United States, 365 U. S. 505, 365 U. S. 511-512. Pp. 394 U. S. 176-180.3. If the surveillance is found to have been unlawful, and if a petitioner is found to have standing, the Government must disclose to him the records of those overheard conversations which the Government was not entitled to use in building its case against him. Pp. 394 U. S. 180-185.(a) The task of determining those items which might have made a substantial contribution to the preparation of the Government's case is too complex, and the margin for error too great, to rely solely upon the in camera examination by the trial court. Pp. 394 U. S. 181-182.(b) The trial court should, where appropriate, place defendants and their counsel under enforceable orders against unwarranted disclosure of the materials they are entitled to inspect. P. 394 U. S. 185.(c) Defendants will not have an unlimited license to rummage in the Government's files, as they may need or be entitled to nothing beyond the specified records of overheard conversations and the right to cross-examine the appropriate officials regarding the connection between those records and the prosecution's case. P. 394 U. S. 185.No. 133, O.T., 1967, order of January 29, 1968, withdrawn, order denying certiorari set aside, rehearing and certiorari granted, 371 F.2d 983, judgments vacated and remanded; Nos. 11 and 197, 34 F.2d 554, judgments vacated and remanded. Page 394 U. S. 167 |
325 | 1956_204 | MR. JUSTICE CLARK delivered the opinion of the Court.While the petitioners in this diversity case present several questions, the sole one decided is whether the Labor Management Relations Act of 1947 [Footnote 1] applies to a Page 353 U. S. 139 controversy involving damages resulting from the picketing of a foreign ship operated entirely by foreign seamen under foreign articles while the vessel is temporarily in an American port. We decide that it does not, and therefore do not reach other questions raised by the parties.The S.S. Riviera, on September 3, 1952, sailed into harbor at Portland, Oregon, for repairs, to load a cargo of wheat, and to complete an insurance survey. It was owned by respondent, a Panamanian corporation, and sailed under a Liberian flag. The crew was made up entirely of nationals of countries other than the United States, principally German and British. They had agreed to serve on a voyage originating at Bremen, Germany, for a period of two years, or until the vessel returned to a European port. A British form of articles of agreement was opened at Bremen. The conditions prescribed by the British Maritime Board were incorporated into the agreement, including wages and hours of employment, all of which were specifically set out. The crew further agreed to obey all lawful commands of the Master of the Riviera in regard to the ship, the stores, and the cargo, whether on board, in boats, or on shore.On or about September 9, 1952, the members of the crew went on strike on board the vessel and refused to obey the orders of the Master. They demanded that their term of service be reduced, their wages be increased, and more favorable conditions of employment be granted. [Footnote 2] Page 353 U. S. 140 They refused to work, demanding their back pay and transportation or its cost to their ports of engagement. The Master told the crew to continue their work or they would be discharged. When they declined to work, he discharged them and ordered them to leave the ship, which they refused to do. This situation continued until September 26, 1952, when the striking crewmen left the vessel pursuant to an order of the United States District Court entered in a possessory libel filed by the respondent. The crew had picketed the vessel from September 9, 1952, when the strike began, until September 26, when they left the ship. On September 15, 1952, they had designated the Sailors' Union of the Pacific as their collective bargaining representative. The striking crew or others acting for them continued the picketing from September 26, 1952, until they withdrew the picket line on October 13, 1952. The Sailors' Union of the Pacific began picketing the Riviera on October 14 and continued to do so until restrained by an injunction issued in an action for injunctive relief and damages filed against it and its principal representatives by the respondent. Two days later, Local 90 of the National Organization of Masters, Mates, and Pilots of America set up a picket line at the Riviera which was maintained until December 8, 1952. This picketing was stopped by a writ issued against that union and its representatives in the second action for injunction and damages filed by respondent and consolidated here. On December 10, 1952, another picket line was established at the vessel. It was maintained this time by the Atlantic and Gulf Coast District, S.I.U., [Footnote 3] until it too was enjoined on December 12 in a third action filed by the respondent in which the prayer likewise was for an injunction Page 353 U. S. 141 and damages. These three cases have been consolidated for consideration here. All of the picketing was peaceful.The ship sailed in December, 1952. In June, 1953, the injunction orders were vacated on appeal to the Court of Appeals and were ordered dismissed as moot. The cases were returned to the District Court for trial on the damage claims. 205 F.2d 944. The ship had not returned to an American port at the time of trial in 1954. At the trial, the court found that the purpose of the picketing "was to compel the [respondent] to reemploy" the striking members of the crew for a shorter term and at more favorable wage rates and conditions than those agreed upon in the articles. The court further found that as a result of the picketing the employees of the firms repairing and loading the vessel refused to cross the picket line and the ship was forced to stand idly by without repairs or cargo, all to the damage of respondent. The unions and their representatives contended that the trial court was without jurisdiction because the Labor Management Relations Act had preempted the field. However, the trial court entered judgment for damages against the three unions as well as their principal representatives. The judgments were based on a common law theory that the picketing was for an unlawful purpose under Oregon law. The court found that respondent had no remedy under the Labor Management Relations Act because that Act"is concerned solely with the labor relations of American workers between American concerns and their employees in the United States, and it is not intended to, nor does it cover a dispute between a foreign ship and its foreign crew."The Court of Appeals thought that United Construction Workers v. Laburnum Construction Corp., 347 U. S. 656 (1954), governed, but that Oregon law did not permit recovery against the unions, since they were unincorporated Page 353 U. S. 142 associations. 233 F.2d 62. [Footnote 4] This, in effect, left the judgments standing against the individual representatives of the unions, the petitioners here. We granted certiorari in order to settle the important question of jurisdiction 352 U.S. 889.It should be noted at the outset that the dispute from which these actions sprang arose on a foreign vessel. It was between a foreign employer and a foreign crew operating under an agreement made abroad under the laws of another nation. The only American connection was that the controversy erupted while the ship was transiently in a United States port and American labor unions participated in its picketing.It is beyond question that a ship voluntarily entering the territorial limits of another country subjects itself to the laws and jurisdiction of that country. Wildenhus' Case, 120 U. S. 1 (1887). The exercise of that jurisdiction is not mandatory, but discretionary. Often, because of public policy or for other reasons, the local sovereign may exert only limited jurisdiction and sometimes none at all. Cunard S.S. Co. v. Mellon, 262 U. S. 100 (1923). It follows that if Congress had so chosen, it could have made the Act applicable to wage disputes arising on foreign vessels between nationals of other countries when the vessel comes within our territorial waters. The question here therefore narrows to one of intent of the Congress as to the coverage of the Act.The parties point to nothing in the Act itself or its legislative history that indicates in any way that the Congress intended to bring such disputes within the coverage of the Act. Indeed the District Court found to the contrary, specifically stating that the Act does not Page 353 U. S. 143 "cover a dispute between a foreign ship and its foreign crew." The Court of Appeals, though not passing on the question, noted that"[i]t may well be that American laws should not be construed to apply, without some more explicit Congressional indication than we are able to find in the National Labor Relations Act, as amended, to situations with as many points of foreign contact as the situation at bar."233 F.2d at 65.Our study of the Act leaves us convinced that Congress did not fashion it to resolve labor disputes between nationals of other countries operating ships under foreign laws. [Footnote 5] The whole background ground of the Act is concerned with Page 353 U. S. 144 industrial strife between American employers and employees. In fact, no discussion in either House of Congress has been called to our attention from the thousands of pages of legislative history that indicates in the least that Congress intended the coverage of the Act to extend to circumstances such as those posed here. It appears not to have even occurred to those sponsoring the bill. The Report made to the House by its Committee on Education and Labor and presented by the coauthor of the bill, Chairman Hartley, stated that "the bill herewith reported has been formulated as a bill of rights both for American workingmen and for their employers." The report declares further that, because of the inadequacies of legislation, "the American workingman has been deprived of his dignity as an individual," and that it is the purpose of the bill to correct these inadequacies. (Emphasis added.) H.R.Rep. No. 245, 80th Cong., 1st Sess. 4. What was said inescapably describes the boundaries of the Act as including only the workingmen of our own country and its possessions.The problem presented is not a new one to the Congress. In the Seamen's Act of March 4, 1915, 38 Stat. 1164, the Congress declared it unlawful to pay a seaman wages in advance, and specifically declared the prohibition applicable to foreign vessels "while in waters of the United States." Id. at 1169, as amended, 46 U.S.C. § 599(e). In Sandberg v. McDonald, 248 U. S. 185 (1918), this Court construed the Act as not covering advancements"when the contract and payment were made in a foreign country where the law sanctioned such contract and payment. . . . Had Congress Page 353 U. S. 145 intended to make void such contracts and payments, a few words would have stated that intention, not leaving such an important regulation to be gathered from implication."Id. at 248 U. S. 195. The Court added that "such sweeping and important requirement is not found specifically made in the statute." Ibid. See also Neilson v. Rhine Shipping Co., 248 U. S. 205 (1918). In 1920, Congress amended § 4 of the Seamen's Act of 1915, and granted to every seaman on a vessel of the United States the right to demand one-half of his then earned wages at every port the vessel entered during a voyage. 41 Stat. 1006, 46 U.S.C. § 597. The section was made applicable to"seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement."This Court, in Strathearn Steamship Co. v. Dillon, 252 U. S. 348 (1920), upheld the applicability of the section to a British seaman on a British vessel under British articles. The Court pointed out:"taking the provisions of the act as the same are written, we think it plain that it manifests the purpose of Congress to place American and foreign seamen on an equality of right in so far as the privileges of this section are concerned, with equal opportunity to resort to the courts of the United States for the enforcement of the act. Before the amendment . . . , the right to recover one-half the wages could not be enforced in face of a contractual obligation to the contrary. Congress, for reasons which it deemed sufficient, amended the act so as to permit the recovery upon the conditions named in the statute."Id. at 252 U. S. 355. In 1928, Jackson v. S.S. Archimedes, 275 U. S. 463, was decided by this Court. It involved advance payments made by a British vessel to foreign seamen before leaving Page 353 U. S. 146 Manchester on her voyage to New York and return. It was contended that the advances made in Manchester were illegal and void. That there was "no intention to extend the provisions of the statute," the Court said,"to advance payments made by foreign vessels while in foreign ports is plain. This Court had pointed out in the Sandberg case, supra, that such a sweeping provision was not specifically made in the statute. . . ."Id. at 275 U. S. 470. Soon thereafter, several proposals were made in Congress designed to extend the coverage of the Seamen's Act so as to prohibit advancements made by foreign vessels in foreign ports. A storm of diplomatic protest resulted. Great Britain, Italy, Sweden, Norway, Denmark, the Netherlands, Germany, and Canada all joined in vigorously denouncing the proposals. [Footnote 6] In each instance, the bills died in Congress.And so, here, such a "sweeping provision" as to foreign applicability was not specified in the Act. [Footnote 7] The seamen agreed in Germany to work on the foreign ship under British articles. We cannot read into the Labor Management Relations Act an intent to change the contractual Page 353 U. S. 147 provisions made by these parties. For us to run interference in such a delicate field of international relations, there must be present the affirmative intention of the Congress clearly expressed. It alone has 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. We, therefore, conclude that any such appeal should be directed to the Congress, rather than the courts.Affirmed | U.S. Supreme CourtBenz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957)Benz v. Compania Naviera Hidalgo, S.A.No. 204Argued March 6, 1957Decided April 8, 1957353 U.S. 138SyllabusThe Labor Management Relations Act of 1947 does not apply to a controversy involving damages resulting from the picketing of a foreign ship operated entirely by foreign seamen under foreign articles while the vessel is temporarily in an American port, though American unions to which the foreign seamen did not belong participated in the picketing, and the Act therefore does not preclude a remedy under state law for such damages. Pp. 353 U. S. 138-147.(a) Congress could have made the Labor Management Relations Act applicable to wage disputes arising on foreign vessels between nationals of other countries when the vessel comes within territorial waters of the United States, but Congress did not do so. Pp. 353 U. S. 142-147.(b) The cases of Sailors' Union of the Pacific, 92 N.L.R.B. 547, and Norris Grain Co. v. Seafarers' International Union, 232 Minn. 91, 46 N.W.2d 94, are inapposite to the question for decision here. P. 353 U. S. 143, n. 5.(c) An intent on the part of Congress to change the contractual agreement made by the foreign shipowner and the foreign seamen in this case cannot be read into the Labor Management Relations Act. Pp. 353 U. S. 146-147.233 F.2d 62 affirmed. |
326 | 1978_77-874 | MR. JUSTICE MARSHALL delivered the opinion of the Court.These cases require us to interpret the definition of a "displaced person" set forth in the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Relocation Act), 84 Stat. 1894, 42 U.S.C. § 4601 et seq. Section 101(6) of the Act defines a "displaced person" as"any person who . . . moves . . . as a result of the acquisition of . . . real property, . . . or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency. . . . "42 U.S.C. § 4601(6). [Footnote 1] Page 441 U. S. 43 Relocation benefits are available under the Act for individuals and businesses that satisfy either the "acquisition" or "written order" clause of this definition. Because the Courts of Appeals for the Seventh and District of Columbia Circuits have adopted conflicting interpretations of the written order clause, [Footnote 2] we granted certiorari. 437 U.S. 903 (1978).Both cases involve housing projects that the Department of Housing and Urban Development (HUD) acquired after the projects' sponsors defaulted on federally insured loans. We must determine whether the written order clause encompasses the tenants required to vacate those housing projects, even though HUD's orders to vacate were not motivated by a governmental acquisition of property to further a public program or project.IAPetitioners in No. 7774 are 17 former tenants of the Riverhouse Tower Apartments, a low- and middle-income housing project in Indianapolis, Indiana. This complex was built in the late 1960's by a private nonprofit corporation, Riverhouse Apartments, Inc., whose mortgage HUD insured and subsidized pursuant to § 221(d)(3) of the National Housing Act, 75 Stat. 150, as amended, 12 U.S.C. § 17151(d)(3). Upon completion of the project, the Government National Mortgage Association (GNMA) purchased the mortgage from Page 441 U. S. 44 the private lender in accordance with § 21(d)(3) of the Housing Act. When Riverhouse Apartments, Inc., defaulted on the loan in July 1970, GNMA assigned the mortgage to HUD in exchange for payment of the statutory mortgage benefits. Three years later, HUD initiated foreclosure proceedings, and a court-appointed receiver assumed operation of the project until HUD purchased the property at a foreclosure sale in August, 1974.HUD initially retained a management agent to continue operating the newly acquired project. However, the condition of the property had deteriorated so seriously during the period of default that HUD soon decided to close the apartment complex. Notices to quit were served on all remaining tenants in November, 1974, and, by the following February, the buildings were vacant. HUD refused to provide relocation benefits for these dislocated tenants or to disclose its plans regarding the terminated project. [Footnote 3]Petitioners then initiated this action in Federal District Court, claiming inter alia, that they were "displaced persons" entitled to assistance under the Relocation Act. [Footnote 4] Construing the written order clause of 101(6) literally, the tenants argued that they had moved upon receiving written orders to vacate property acquired by a Government agency. The District Court rejected this statutory construction and granted summary judgment for HUD. Blades v. Dept. of HUD, Civ. No. IP 74-706-C (SD Ind., July 1, 1976). The Court of Appeals for the Seventh Circuit affirmed. In its view, § 101(6) encompasses only displacements for programs designed to benefit Page 441 U. S. 45 the public as a whole or to fulfill a public need, not dislocations caused by the irretrievable failure of a public housing project. 555 F.2d 166, 169-170 (1977). [Footnote 5]BThe tenants in No. 77-1463 formerly occupied the Sky Tower apartment complex built in Washington, D.C., during the 1950's. A nonprofit corporation purchased Sky Tower in 1970, intending to convert a number of its small "garden" apartments into larger units for low- and moderate-income families. HUD agreed to assist in the rehabilitation by insuring the corporation's mortgage on the complex and subsidizing its interest payments pursuant to § 236 of the National Housing Act, 82 Stat. 498, as amended, 12 U.S.C. § 1715z-1. Difficulties with two successive general contractors eventually prevented the corporate sponsor from making interest payments on its loan. As a result, the mortgagee declared the sponsor in default, foreclosed on the mortgage, and conveyed title to HUD in exchange for the statutory mortgage insurance benefits. See 12 U.S.C. §§ 1713(g), (k).After acquiring title to Sky Tower in June, 1973, HUD hired a management agent to continue operating the partially rehabilitated complex. By September, 1974, however, HUD realized that Sky Tower's deteriorated condition would render any further efforts at rehabilitation futile. The agency therefore planned to demolish the buildings and sell the land to private developers for construction of single family homes. Page 441 U. S. 46 When the 72 families living in the complex were ordered to vacate, HUD declined to extend assistance under the Relocation Act. [Footnote 6]A group of the Sky Tower tenants brought this suit in Federal District Court, challenging HUD's decision to raze the complex and its refusal to provide full relocation benefits. The District Court preliminarily enjoined HUD from completing the demolition, and subsequently granted summary judgment for the tenants on the benefits issue. Civ.Action No. 74-1872 (DC, Sept. 12, 1975). [Footnote 7] A divided panel of the Court of Appeals for the District of Columbia Circuit agreed that these tenants were "displaced persons" under the written order clause of § 101(6). 187 U.S.App.D.C. 156, 161, 571 F.2d 590 595 (1977). In so ruling, the Court of Appeals rejected HUD's argument that § 101(6) reaches only persons dislocated by an agency's purposeful acquisition of property for use in certain types of government programs. The court instead considered the written order clause applicable whenever an agency orders persons to vacate so that property can be devoted to a federal program "designed for the benefit of the public as a whole.'" 187 U.S.App.D.C. at 161, 571 Page 441 U. S. 47 F.2d at 595. In the court's view, HUD's demolition plan met this description. Ibid. [Footnote 8]IISection 101(6) of the Relocation Act, as previously indicated, provides that a "displaced person" is one who moves"as a result of the acquisition of . . . real property, . . . or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency. . . ."42 U.S.C. § 4601(6). In neither case do the tenants claim coverage under the "acquisition" clause of § 101(6), which reaches persons dislocated by the actual procurement of property for a federal program or project. Brief for Respondents in No. 77-1463, p. 15, and n. 17; Tr. of Oral Arg. 10. Hence, these tenants' eligibility for relocation assistance turns on the meaning of the definition's written order clause. More precisely, their eligibility depends on the import of two critical phrases not specifically defined in the Act, "acquiring agency" and "for a program or project."The tenants contend that "acquiring agency" simply denotes a governmental body that has previously acquired property and that eventually orders persons to vacate. In contrast, HUD reads the phrase as a shorthand description of an agency currently engaged in the process of acquiring property. Under HUD's construction, the written order clause contains an implicit acquisition requirement. The clause thus construed does not apply unless an agency's proposed acquisition of property Page 441 U. S. 48 directly causes issuance of the displacing order, whereas the tenants' interpretation demands no immediate causal connection between the procurement of property and the order to vacate. The parties also disagree about the proper referent for the phrase, "for a program or project." [Footnote 9] HUD contends that this phrase modifies the acquisition requirement included in the written order clause. Consequently, "for a program or project" specifies the agency's original purpose in acquiring property, not just its purpose in issuing an order to vacate. Under this construction, the written order clause applies only if an agency issues its notice to vacate pursuant to an actual or proposed acquisition of property intended to further a federal program. Thus, tenants of a housing project acquired by the Government because of the owner's loan default would not be eligible for relocation assistance when the acquiring agency later adopts a program necessitating their displacement. The tenants, on the other hand, read "for a program or project" as referring solely to the written order. The phrase therefore identifies the agency's reason for ordering persons to vacate, but does not make eligibility depend on the agency's Page 441 U. S. 49 original purpose in acquiring the property. According to this analysis, the written order clause covers any individual who receives a written order to vacate property that an agency has previously acquired, provided the displacement is "for" a federal program or project. Moreover, the tenants broadly construe "program or project" to include any governmental program designed to fulfill a public need.The statutory language is susceptible of either construction. However, an examination of Congress' purpose in adopting the Relocation Act, the legislative history of § 101(6), and the structure of the Act as a whole persuades us that HUD's interpretation more nearly reflects the intended scope of this assistance program.APassage of the Relocation Act in 1970 concluded nearly a decade of congressional effort to standardize federal legislation regarding relocation assistance. Prior to the 1960's, Congress had enacted special provisions to assist persons displaced when particular federal agencies acquired property for designated public projects. [Footnote 10] As a result, relocation benefits varied substantially from program to program. The House Public Works Committee responded to these variations in 1961 by creating the Select Subcommittee on Real Property Acquisition. In 1964, this Subcommittee submitted a lengthy Report concerning the deficiencies of existing law, and its proposed "Fair Compensation Act" became the basis for most of the provisions ultimately codified in the Relocation Act. [Footnote 11] Page 441 U. S. 50The proposed Fair Compensation Act unambiguously reflects Congress' limited purpose in revising the special relocation legislation. The Act's declared purpose was to afford"persons affected by the acquisition of real property in Federal and federally assisted programs . . . fair and equitable treatment on a basis as nearly uniform as practicable."Select Subcommittee Study 147 (emphasis added); see id. at 1-2, 122. This statement of policy embodied Congress' recognition that existing law provided relocation benefits only to those persons dislocated by governmental acquisitions of property for use in public projects. [Footnote 12] And in accord with its mandate, the Select Subcommittee drafted the replacement legislation to standardize and improve the assistance provided within that particular context. [Footnote 13] Thus, both the language and origins of the Relocation Act demonstrate that Congress initially intended to provide better relocation assistance when property is acquired for federal programs, not to extend assistance beyond that limited context to all persons somehow displaced by governmental programs. [Footnote 14] Page 441 U. S. 51Congress' basic objective remained unchanged through succeeding legislative sessions as it considered a number of bills derived from the proposed Fair Compensation Act. During this period, the individual sponsors and the Senate Committee on Government Operations altered slightly the language used to declare Congress' purpose, but the meaning was unaffected. [Footnote 15] Thus, the original "Declaration of Policy" in S. 1, 91st Cong., 1st Sess., § 201 (1969), the bill finally enacted as the Relocation Act, stated that the legislation was designed"to establish a uniform policy for the fair and equitable treatment of owners, tenants, and other persons displaced by the acquisition of real property in Federal and federally assisted programs to the end that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole."(Emphasis added.) This language leaves little doubt that Congress' concern was Page 441 U. S. 52 still with displacements caused by the acquisition of property for a Government program or project. [Footnote 16]In arguing that Congress had a broader purpose, to provide relocation assistance outside the acquisition context, the tenants rely on language adopted by the House of Representatives after the Senate passed S. 1. When the House Committee on Public Works reorganized and shortened the bill's provisions into their final form, it also streamlined the "Declaration of Policy" by deleting the references to acquisitions of property. Consequently, § 201 of the Relocation Act simply refers to "persons displaced as a result of Federal and federally assisted programs," [Footnote 17] and the tenants suggest that all such persons are the intended beneficiaries of the statute. However, the tenants' interpretation of this language is plainly inconsistent with prior versions of the section, all of which expressly related to displacements caused by the acquisition of property for the programs specified in § 201. [Footnote 18] Nothing in the legislative materials suggests that this late revision in the Act's statement of purpose reflected any substantive departure from Congress' previous statutory design. [Footnote 19] Indeed, the House Committee that shortened the Declaration of Policy stated in its Report that the bill"provides for relief of the economic Page 441 U. S. 53 dislocation which occurs in the acquisition of real property for Federal and federally assisted programs."H.R.Rep. No. 91-1656, p. 3 (1970). Accordingly, the consistent purpose underlying this legislation persuades us that Congress intended the written order clause to apply only when an agency proposes acquiring property to further a federal program or project.BThe legislative history specifically concerning the definition of a displaced person reinforces our conclusion. Prior versions of § 101(6) encompassed only persons dislocated by actual or proposed property acquisitions, and, in particular, those acquisitions intended to further federal programs and projects. The legislative materials demonstrate that, when Congress added the written order clause to this definition, its purpose was to delineate more precisely a subcategory of the originally intended beneficiaries, consisting of those who move in anticipation that a property acquisition for a federal program will necessitate their displacement. Viewed in context, the written order clause addresses a special situation related to unconsummated property acquisitions, not all displacements loosely connected with Government programs.The definition of a displaced person originated in the proposed Fair Compensation Act. Section 115 defined the term to include persons and businesses that move from real property "as a result of the acquisition or imminence of acquisition of such real property, in whole or in part, by a Federal or State agency." Select Subcommittee Study 157-158. That this choice of language was deliberate can be seen from other provisions of the Act, which authorized relocation assistance only when the "head of any Federal agency acquires real property for public use." [Footnote 20] Page 441 U. S. 54The version of the Fair Compensation Act introduced in the next Congress adopted the same definition of a displaced person. [Footnote 21] However, witnesses during the Senate hearings criticized the phrase "or imminence of acquisition" as too ambiguous to provide guidance for agencies and potential displacees. [Footnote 22] In response, the Senate Committee on Government Operations amended the phrase to read "or reasonable expectation of acquisition," thereby incorporating an objective standard of eligibility. [Footnote 23] The limited scope of this amendment, Page 441 U. S. 55 as well as the definition, is apparent from the Committee's explanation that the change was designed"to remove some of the ambiguities surrounding the meaning of 'imminence' and to make it amply clear that this legislation applies to persons who move from property to be acquired in connection with a Federal or federally assisted program when or shortly after the proposed project is announced, and when the announcement is made substantially prior to the time the project is to be put into effect."S.Rep. No. 1378, 89th Cong., 2d Sess., 9 (1966). This passage and others in the Senate Committee Report [Footnote 24] clearly indicate that Congress framed the definition to reach only persons displaced by actual or planned acquisitions of property. These materials also demonstrate that Congress restricted the definition even further by focusing exclusively on property acquisitions for use in federal programs and projects. [Footnote 25]The Senate's amended definition of a displaced person was retained in the relocation bills proposed in succeeding legislative sessions, including the original version of the bill finally enacted as the Relocation Act, S. 1, 91st Cong., 1st Sess., § 105 (1969). [Footnote 26] The Senate passed this bill with only minor amendments and without significant debate. [Footnote 27] But the House Committee on Public Works amended the definition of a Page 441 U. S. 56 displaced person when reorganizing the bill's provisions into their final form. [Footnote 28] This late amendment added the clause on which the tenants base their argument that relocation assistance was intended for all persons displaced by Government programs.The contemporaneous legislative materials, however, refute the tenants' interpretation of the written order clause. During the House hearings on the relocation bills, a number of witnesses criticized even the "reasonable expectation of acquisition" language as overly vague. [Footnote 29] To remedy this problem, representatives of the United States Department of Transportation and HUD recommended relating the expectation of acquisition to a readily discernible official act, so that persons who justifiably relied on agency representations could still obtain reimbursement even if the agency later failed to complete the acquisition. [Footnote 30] The House Committee accepted this suggestion and replaced "or reasonable expectation of acquisition" with "or as the result of the written order of the Page 441 U. S. 57 acquiring agency to vacate real property." [Footnote 31] Thus, the sole objective underlying the present written order clause was to delineate more precisely the persons eligible for assistance as a result of planned, but unconsummated, acquisitions of property for federal programs.The House Committee Report and floor debate also reflect this limited purpose. Based on the previously understood scope of this legislation and on testimony given during the House hearings, [Footnote 32] the House Committee was well aware that Page 441 U. S. 58 the unamended definition of a displaced person excluded those displaced by means other than property acquisitions for public projects. The Committee presumably would have articulated any intent to extend coverage beyond the acquisition context or to eliminate the requirement that an acquisition be for a federal program. [Footnote 33] Instead, the House Report simply explained that, under the new written order clause, "[i]f a person moves as the result of such a notice to vacate, it makes no difference whether or not the real property actually is acquired." H.R.Rep. No. 91-1656, p. 4 (1970) (emphasis added). [Footnote 34] Similarly, the Report observed in reference to the entire definition of a displaced person, "[t]he controlling point is that the real property must be acquired for a Federal or Federal financially assisted program or project." Ibid. [Footnote 35] Page 441 U. S. 59Nor is there any evidence that the Senate perceived the written order clause as an expansion of the bill when it accepted the House Committee's changes without a conference and almost without debate. 116 Cong.Rec. 40163-40172 (1970). The sole reference during the Senate deliberations to the amended definition of a "displaced person" appeared in a memorandum submitted on behalf of the administration, which stated:"The House bill would limit the status of displaced person to those who move as the result of the acquisition of, or written notice to vacate, real property. The Senate version would provide a broader definition which includes those who move as the result of acquisition or reasonable expectation of acquisition."Id. at 42139. This description of the amendment as a slight limitation, rather than a significant expansion of the statutory design, was accepted without dispute when the Senate approved the House version of this section as the final language for the Relocation Act. Ibid.In sum, the legislative history of the written order clause reveals no congressional intent to extend relocation benefits beyond the acquisition context. Rather, this clause merely ensures that assistance is available for a distinct group of persons directed to move because of a contemplated acquisition, whether the agency ultimately acquires the property or not. The written order clause therefore preserves the original meaning of a displaced person, since it does not apply unless a proposed acquisition directly causes issuance of the notice to vacate and the property acquisition is intended to further a federal program or project. Page 441 U. S. 60CThe structure of the Relocation Act confirms our conclusion that Congress did not expect to provide assistance for all persons somehow displaced by Government programs. The benefit provisions involved here are but one part of a comprehensive statute that also establishes the procedures agencies must follow when acquiring land for federal programs. See 42 U.S.C. §§ 4651-4655. This placement in itself suggests that Congress was concerned with burdens related to Government acquisitions of property, as opposed to a broader range of dislocation problems. But more importantly, the Act's other relocation sections, which specify the benefits available for displaced persons, manifest the limited scope of § 101(6) and the written order clause.Sections 202 and 205 of the Act require respectively that moving and related expenses be paid and relocation assistance advisory services be provided for displaced persons only when an agency proposes acquiring property for a federal program. See n 1, supra. Thus, § 202 begins:"Whenever the acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person . . . , the head of such agency shall make a payment to any displaced person, upon proper application. . . ."84 Stat. 1895, 42 U.S.C.§ 4622. Identical language triggers application of § 205. 84 Stat. 1897, 42 U.S.C. § 4625. If the tenants' broad construction of the written order clause were correct, certain individuals would qualify as displaced persons within the meaning of § 101(6), but the lack of an acquisition would preclude them from receiving benefits under §§ 202 and 205. Absent any indication that Congress intended such an anomalous result, we believe all three provisions must be given similar scope. [Footnote 36] Page 441 U. S. 61Sections 203 and 204 of the Act, which authorize replacement housing payments for dislocated homeowners and tenants, see n 1, supra, also bear upon interpretation of the written order clause. These sections provide benefits only to displaced persons who occupied their dwelling for a prescribed length of time "prior to the initiation of negotiations for the acquisition of the property." 42 U.S.C. § 4623(a)(1). [Footnote 37] Congress drafted these occupancy requirements to exclude from coverage persons who otherwise might attempt to obtain substantial relocation benefits by moving onto property after the acquisition process has begun. [Footnote 38] Yet according to the tenants' analysis of § 101(6), which requires only that an agency have procured the property at some point in the distant past, these occupancy strictures would exclude a much larger class of displaced persons than necessary to fulfill their objective. For example, tenants dislocated by the closing of a housing project that an agency had obtained 20 years earlier might satisfy the written order clause, but the failure of most to have lived in the project prior to the acquisition would prevent them from obtaining replacement housing payments under § 204. Again, we doubt Congress intended the statute to operate in this manner. Rather, §§ 203 and 204 demonstrate that the written order clause cannot be divorced from the acquisition context without distorting the statutory design.Finally, the special benefits provision in § 217 of the Act Page 441 U. S. 62 highlights the limited reach of § 101(6). Congress drafted § 217 to preserve the one preexisting relocation assistance program extending beyond the acquisition context. [Footnote 39] This section provides:"A person who moves . . . as a direct result of any project or program which receives Federal financial assistance under title I of the Housing Act of 1949, as amended, or as a result of carrying out a comprehensive city demonstration program under title I of the Demonstration Cities and Metropolitan Development Act of 1966 shall . . . be deemed to have been displaced as the result of the acquisition of real property."84 Stat.1902, 42 U.S.C. § 4637 (emphasis added). Inclusion of this special provision, to ensure that certain persons displaced by action other than an acquisition of property could still qualify for relocation benefits, reflects Congress' understanding that such persons would not be covered by the general definition of a "displaced person" set forth in § 101(6). [Footnote 40]DAccordingly, we hold that the written order clause encompasses only those persons ordered to vacate in connection with the actual or proposed acquisition of property for a federal program. In essence, the clause embodies two causal requirements. First, the written order to vacate must result directly from an actual or contemplated property acquisition. [Footnote 41] Second, Page 441 U. S. 63 and more fundamentally, that acquisition must be "for," or intended to further, a federal program or project. In combination, these two causal requirements substantially limit applicability of the written order clause, so that persons directed to vacate property for a federal program cannot obtain relocation assistance unless the agency also intended at the time of acquisition to use the property for such a program or project. Thus, a program developed after the agency procures property will not suffice, even though it necessitates displacements, since that program could not have motivated the property acquisition. [Footnote 42] It remains to be considered, however, whether the relationship between HUD's acquisitions and orders to vacate brings the tenants here within the purview of § 101(6).IIIThe tenants in both cases contend that the acquisitions of Sky Tower and Riverhouse Apartments met these statutory requirements because HUD obtained the property in connection with its mortgage insurance programs. In support of this Page 441 U. S. 64 contention, they point to Congress' explicit provision for occasional default acquisitions resulting from the mortgage insurance programs of the National Housing Act. Section 207(k) of that Act expressly authorizes HUD to purchase insured properties at foreclosure sales, and § 207(1) grants HUD wide latitude to rehabilitate and operate property acquired upon default or to transfer the property and recoup the agency's investment. 12 U.S.C. §§ 1713(k)(1). Pursuant to that mandate, HUD has prepared a Property Disposition Handbook -- Multi-family Properties, RHM 4315.1 (1971), revised and set forth at 24 CFR Pt. 290 (1978), which requires responsible officials to formulate a disposition program for newly acquired properties.However, the legislative history of the Relocation Act discussed in 441 U. S. supra, demonstrates that the mere anticipation and authorization of default acquisitions in the mortgage insurance programs cannot render these tenants eligible under § 101(6). By requiring that an acquisition be "for" a federal program or project, Congress intended that the acquisition must further or accomplish a program designed to benefit the public as a whole. [Footnote 43] Even assuming that the National Housing Act mortgage insurance programs constitute federal "programs or projects," [Footnote 44] default acquisitions arising out of those programs Page 441 U. S. 65 do not satisfy § 101(6)'s causality requirements. These acquisitions occur as a result of the mortgage insurance programs' predictable, though unfortunate, failures, but the default acquisitions do not further the purpose of these particular programs. [Footnote 45] If the written order clause were satisfied by acquisitions so tangentially related to a federal program or project, then, for example, persons who default on federally insured housing loans presumably could obtain relocation assistance whenever a Government agency acquires their homes at a foreclosure sale, and thereby causes displacements. Absent any evidence that Congress intended to provide relocation benefits under such circumstances, we believe typical default acquisitions are not "for" a federal program within the meaning of § 101(6). For the same reasons, HUD's preparation of a Handbook governing the disposition of property acquired in this manner fails to qualify these tenants for relocation benefits. Like any purchaser, HUD must manage the property it acquires. But the mere adoption of a management plan cannot retroactively establish the requisite purpose for acquiring property in the first instance.Alternatively, the tenants in No. 77-1463 contend that the particular disposition HUD planned for Sky rower, pursuant to the Property Disposition Handbook, qualified them under the written order clause. After studying several options, HUD decided to demolish Sky Tower and sell the land to private developers who would build single-family homes, all in accordance with the District of Columbia government's master plan for improving the neighborhood. By its own admission in proceedings before the District Court, HUD proposed the demolition to "eliminate blight" in conformity with a plan to revitalize the area. 396 F. Supp. 1235, 1236 (DC 1975). Page 441 U. S. 66 These events convinced the Court of Appeals that the Sky Tower tenants had been ordered to vacate for a "program or project" within the meaning of § 101(6). 187 U.S.App.D.C. at 161, 571 F.2d at 595.The difficulty with this analysis is that, even though HUD's demolition plan is the type of program or project to which § 101(6) refers, HUD did not acquire Sky Tower for that purpose. The statute requires more than a causal connection between the order to vacate and the demolition program, which was all the Court of Appeals considered necessary. As explained in 441 U. S. supra, the program or project must also be the reason for acquiring the property. Yet the tenants have never contended that HUD initially acquired Sky Tower in order to eliminate blight or to further the District of Columbia government's master plan, nor did the Court of Appeals or the District Court reach such a conclusion. Without the requisite relationship between the demolition program and the acquisition, HUD's proposal for disposing of Sky Tower is no different than any other property management plan, insufficient by itself to confer eligibility under § 101(6) of the Relocation Act.We recognize, of course, that an agency's intent in acquiring property appears irrelevant to those displaced by federal order. From a tenant's perspective, the costs of dislocation are the same regardless of whether an agency anticipated causing displacements when it acquired property. Nonetheless, Congress chose to condition eligibility for relocation benefits on the agency's purpose in acquiring property, and our function is not to rewrite the statute. The increasing number of default acquisitions by Government agencies may well prompt Congress to expand the Relocation Act's coverage. [Footnote 46] But until Page 441 U. S. 67 Congress does so, the tenants in these cases are ineligible for relocation assistance under that Act.Accordingly, the judgment of the Court of Appeals in No. 77-1463 is reversed and the judgment in No. 77-874 is affirmed.It is so ordered | U.S. Supreme CourtAlexander v. HUD, 441 U.S. 39 (1979)Alexander v. United States Departmentof Housing and Urban DevelopmentNo. 77-874Argued December 5, 1978Decided April 17, 1979*441 U.S. 39SyllabusThe Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Relocation Act) makes relocation benefits available for individuals and businesses that satisfy the statutory definition of a "displaced person." Section 101(6) of the Act defines that term to include"any person who . . . moves . . . as a result of the acquisition of . . . real property . . . or as a result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency."Both of these cases involve tenants displaced from housing projects that the Department of Housing and Urban Development (HUD) acquired because the projects' sponsors defaulted on federally insured loans. Petitioners in No. 77-874 were dislocated by HUD's subsequent closing of an Indianapolis, Ind., housing project, and HUD refused to provide relocation benefits for these tenants. Petitioners then initiated this action in Federal District Court, claiming that they were "displaced persons" under the written order clause of § 101(6). The District Court rejected the tenants' statutory construction and granted summary judgment for HUD. The Court of Appeals affirmed, holding that § 101(6) encompasses only displacements for programs designed to benefit the public as a whole or to fulfill a public need, not dislocations caused by the irretrievable failure of a public housing project. Respondents in No. 77-1463 were displaced when HUD determined that a Washington, D.C., project should be demolished and the land sold to private developers. When HUD ordered the tenants to vacate but declined to extend assistance under the Relocation Act, respondents brought suit in Federal District Court. The court agreed that the dislocated tenants were covered by the written order clause of § 101(6), and granted summary judgment for respondents. The Court of Appeals affirmed, holding that the written order Page 441 U. S. 40 clause encompasses all persons ordered to vacate so that an agency's property can be devoted to a federal program "designed for the benefit of the public as a whole." Because HUD's demolition plans met this description, the tenants HUD directed to move were considered "displaced persons."Held:1. The written order clause of § 101(6) encompasses only those persons ordered to vacate in connection with the actual or proposed acquisition of property for a federal. program. Pp. 441 U. S. 49-63.(a) Both the language and origins of the Relocation Act demonstrate that Congress intended to provide relocation assistance when property is acquired for federal programs, not to extend assistance beyond that limited context for all persons somehow displaced by Government programs. Pp. 441 U. S. 49-53.(b) Similarly, the legislative history of the written order clause reveals no congressional intent to extend relocation benefits beyond the acquisition context. Rather, this clause was designed to ensure that assistance is available for a distinct group of persons directed to move because of a contemplated acquisition, whether the agency ultimately acquires the property or not. Thus, the clause applies only when a proposed acquisition directly causes issuance of the notice to vacate and the property acquisition is intended to further a federal program or project. Pp. 441 U. S. 53-59.(c) The structure of the Relocation Act, as well as the statutory provisions specifying the benefits available for displaced persons, manifests the limited scope of § 101(6) and the written order clause. Pp. 441 U. S. 60-62.(d) In essence, the written order clause embodies two causal requirements. First, the written order to vacate must result directly from an actual or contemplated property acquisition. Second, and more fundamentally, that acquisition must be "for," or intended to further, a federal program or project. In combination, these two causal requirements substantially limit applicability of the clause, so that persons directed to vacate property for a federal program cannot obtain relocation assistance unless the agency also intended at the time of acquisition to use the property for such a program or project. Thus, a program developed after the agency procures property will not suffice, even though it necessitates displacements, since that program could not have motivated the property acquisition. Pp. 441 U. S. 62-63.2. Here, the relationship between HUD's acquisitions and orders to Page 441 U. S. 41 vacate does not bring the tenants within the purview of § 101(6). Pp. 441 U. S. 63-67.(a) The Relocation Act's legislative history demonstrates that the mere anticipation and authorization of default acquisitions in the National Housing Act mortgage insurance programs cannot render these tenants eligible for relocation assistance under § 101(6). By requiring that an acquisition be "for" a federal program or project, Congress intended that the acquisition must further or accomplish a program designed to benefit the public as a whole. Even assuming that the mortgage insurance programs constitute federal "programs or projects," default acquisitions arising out of those programs do not satisfy § 101(6)'s causality requirements. Although these default acquisitions occur as a result of the mortgage insurance programs' failures, they do not further the purpose of these particular programs. Pp. 441 U. S. 665.(b) In addition, HUD's adoption of a property management plan cannot retroactively establish the requisite purpose for acquiring property in the first instance. P. 441 U. S. 65.(c) Even though HUD's demolition plan in No. 77-1463 is the type of program or project to which § 101(6) refers, HUD did not acquire the project for that purpose. The statute requires more than a causal connection between the order to vacate and the demolition program. The program or project must also be the reason for acquiring the property. Without the requisite relationship between the demolition program and the acquisition, HUD's proposal for disposing of the housing project is no different than any other property management plan, insufficient by itself to confer eligibility under § 101(6). Pp. 441 U. S. 65-66.No. 77-874, 555 F.2d 166, affirmed; No. 77-1463, 187 U.S.App.D.C. 156, 571 F.2d 590, reversed.MARSHALL, J., delivered the opinion for a unanimous Court. Page 441 U. S. 42 |
327 | 1958_90 | MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The petitioner seeks relief under 28 U.S.C. § 2255 from his conviction and sentence for violation of the Federal Kidnapping Act, 18 U.S.C. § 1201. Briefly, the kidnapping charge grew out of the following facts: Petitioner, a young man of twenty-six, and two seventeen-year-old boys, while in custody under state charges, escaped from a Florida jail on November 12, 1949. They were almost immediately pursued by men and bloodhounds through swampy everglade terrain. On November 14, 1949, they allegedly preempted an automobile and seized its owner forcing him to accompany them into the State of Alabama, where they released the victim without harming him and subsequently abandoned the car. On November 18, 1949, the defendants were arrested by federal authorities in a hiding place under the floor of a building. Petitioner claimed that he was weak from lack of food and sleep, and that his back had been injured in the course of the escape. The defendants were taken promptly before the United States Commissioner, where they were charged with transporting a kidnapping victim across state boundaries.On the following day, petitioner was interviewed at length by a government agent concerning both the kidnapping offense and his prior record. There was a conflict in the evidence concerning what transpired at this interview. The petitioner testified that he was promised leniency if he would plead guilty, and that he was assured Page 360 U. S. 3 that the juveniles would be given no more than four years' imprisonment if they pleaded guilty. The Government offered evidence to the effect that no promises were made. In any event, on Monday morning, November 21, 1949, petitioner and his codefendants were brought by the government agent to the office of the United States Attorney, where a discussion ensued concerning waivers of indictments, counsel, and venue, and pleas of guilty to an information which the United States Attorney proposed to file.While that conference was proceeding, the government agent who had previously interviewed petitioner had a private out-of-court audience and conference with the district judge in his chambers at which, in the absence of the defendants, he discussed the contemplated proceedings with the judge and informed him about the alleged kidnapping offense and other alleged crimes of petitioner. Soon thereafter, and, in the words of the Court of Appeals,"[a]fter the judge's mind had become thoroughly conditioned by this interview with, and the disclosures made to him by, [the government agent] regarding the defendants,"there followed in open court "a stilted and formal colloquy consisting of brief and didactic statements by the judge" that the defendants could have a lawyer if they wished, and could have their cases submitted to a grand jury. 238 F.2d 925, 927, n. 5. The defendants, including petitioner, stated that they did not wish to have an attorney and were willing to waive indictment and be prosecuted under an information to be filed by the prosecutor. The information was immediately filed, and the defendants waived counsel and venue. [Footnote 1] They then immediately Page 360 U. S. 4 pleaded guilty to the information and stated that they wanted to be sentenced promptly, before their parents knew of their predicaments. The judge then sentenced petitioner to thirty years in the penitentiary and the two seventeen-year-old accomplices to fifteen years each. No appeals were taken. [Footnote 2]Because of these precipitous and telescoped proceedings, the case has had a long and troublesome history in the Court of Appeals for the Fifth Circuit. It has been three times before that court. Soon after the sentence was imposed, petitioner filed his initial application under § 2255 to vacate the judgment. The application was denied without a hearing, and no appeal was taken. In March, 1954, petitioner filed a second, similar application, which was likewise denied without a hearing, but, on appeal the Court of Appeals determined that petitioner's allegations required a hearing. Smith v. United States, 223 F.2d 750. After the hearing was held, the District Court again dismissed the application. 137 F. Supp. 222. Again the Court of Appeals reversed, this time finding that petitioner had been deprived of due process by the summary manner in which the Government had proceeded Page 360 U. S. 5 against him. [Footnote 3] Smith v. United States, 238 F.2d 925, 930. First, the court remanded the cause "with directions to grant the motion, to set aside the conviction and sentence, and to proceed further and not inconsistently" with the opinion. 238 F.2d, at 931. On rehearing, however, the court modified its directions as follows:"The judgment is reversed, and the cause is remanded with directions to set aside the conviction and sentence and to proceed further and not inconsistently herewith, including, if the district judge is of the opinion that the ends of justice require it, permitting the defendant to withdraw his waiver of counsel and his plea of guilty and to stand trial."240 F.2d 347. On the remanded proceedings, the District Court resentenced petitioner, but refused him permission to withdraw his waivers and guilty plea. The Court of Appeals Page 360 U. S. 6 affirmed this decision, Smith v. United States, 250 F.2d 842, over the dissent of Judge Rives, who believed that the court's action in setting aside the conviction on justified due process grounds necessarily required the vacation of the plea of guilty. 250 F.2d 842, 843-844. He also dissented on the ground that kidnapping under 18 U.S.C. § 1201 is a capital offense, which, pursuant to the Federal Rules of Criminal Procedure, Rule 7(a), requires prosecution by indictment regardless of a defendant's waiver, and that prosecution by information in the instant proceeding had not conferred on the convicting court jurisdiction to try petitioner's case. We granted certiorari because of the due process and statutory questions raised. 357 U.S. 904. But, in view of our belief that the indictment point is dispositive of the case in petitioner's favor, we find it unnecessary to reach the due process questions presented.The precise question at issue, therefore, is whether petitioner's alleged violation of the Kidnapping Act had to be prosecuted by indictment. A number of statutory and constitutional provisions and the information charging petitioner are relevant to this inquiry. The Fifth Amendment provides in part that"[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,"except in cases not pertinent here. But the command of the Amendment may be waived under certain circumstances, [Footnote 4] and the Federal Rules of Criminal Procedure, Rule 7(a), provide as follows:"An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by Page 360 U. S. 7 indictment or, if indictment is waived, it may be prosecuted by information. Any other offense may be prosecuted by indictment or by information. An information may be filed without leave of court."(Emphasis added.) These enactments become particularly pertinent in view of the language of 18 U.S.C. § 1201, the statute under which petitioner was convicted, which provides in part that:"(a) Whoever knowingly transports in interstate . . . commerce, any person who has been unlawfully . . . kidnapped . . . shall be punished (1) by death if the kidnapped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed."The charging part of the information against petitioner stated that he"did knowingly transport in interstate commerce . . . a person, to-wit, Alan W. Spearman, Jr., who had been unlawfully seized, kidnapped, abducted, and carried away and held for the safe conduct of the three defendants. . . ."The charge did not state whether Spearman was released harmed or unharmed.It has been held by two Courts of Appeals that indictments similar in terms to the charge here were sufficient to support capital punishments despite the absence of allegations that the kidnapping victims were released harmed. United States v. Parrino, 180 F.2d 613; Robinson v. United States, 144 F.2d 392. Cf. United States v. Parker, 103 F.2d 857. Petitioner contends that these holdings dispose of his case because they make clear that the statute creates a single offense of kidnapping which may be punished by death if the prosecution, at trial, shows that the victim was released in a harmed condition. Page 360 U. S. 8 The Government claims, however, that whether a specific kidnapping constitutes a capital offense requires examination of the evidence to determine whether the victim was released harmed or unharmed; in other words, that the statute creates two offenses: kidnapping without harm, which is punishable by a term of years, and kidnapping with harm, which is punishable by death. Further, the Government contends that the mere filing of an information by the United States Attorney eliminated the capital element of the crime.The Courts of Appeals which have been concerned with the statute have uniformly construed it to create the single offense of transporting a kidnapping victim across state lines. We agree with this construction. Under the statute, that offense is punishable by death if certain proof is introduced at trial. When an accused is charged, as here, with transporting a kidnapping victim across state lines, he is charged and will be tried for an offense which may be punished by death. Although the imposition of that penalty will depend on whether sufficient proof of harm is introduced during the trial, that circumstance does not alter the fact that the offense itself is one which may be punished by death, and thus must be prosecuted by indictment. In other words, when the offense as charged is sufficiently broad to justify a capital verdict, the trial must proceed on that basis even though the evidence later establishes that such a verdict cannot be sustained because the victim was released unharmed. It is neither procedurally correct nor practical to await the conclusion of the evidence to determine whether the accused is being prosecuted for a capital offense. For the trial judge must make informed decisions prior to trial which will depend on whether the offense may be so punished. He must decide, among other things, whether the accused has the right to obtain a list of veniremen and government witnesses, 18 U.S.C. § 3432, Page 360 U. S. 9 whether venue is properly set, 18 U.S.C. § 3235, whether the accused has the benefit of twenty, rather than ten, peremptory challenges, Federal Rules of Criminal Procedure, Rule 24 (b), whether indictment, rather than information, is necessary, Federal Rules of Criminal Procedure, Rule 7, and who may bail the accused. 18 U.S.C. § 3141.This Court has, in recent years, upheld many convictions in the face of questions concerning the sufficiency of the charging papers. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. E.g., Hagner v. United States, 285 U. S. 427; Wims v. United States, 341 U. S. 97; United States v. Debrow, 346 U. S. 374. This has been a salutary development in the criminal law. But the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules. The use of indictments in all cases warranting serious punishment was the rule at common law. Ex parte Wilson, 114 U. S. 417; Mackin v. United States, 117 U. S. 348. The Fifth Amendment made the rule mandatory in federal prosecutions in recognition of the fact that the intervention of a grand jury was a substantial safeguard against oppressive and arbitrary proceedings. Ex parte Bain, 121 U. S. 1; Hale v. Henkel, 201 U. S. 43; Toth v. Quarles, 350 U. S. 11, 350 U. S. 16. Rule 7(a) recognizes that this safeguard may be waived, but only in those proceedings which are noncapital. To construe the provisions of the Rule loosely to permit the use of informations where, as here, the charge states a capital offense would do violence to that Rule, and would make vulnerable to summary treatment those accused of one of our most serious crimes. We cannot do this in view of the traditional canon of construction which calls for the strict interpretation of criminal statutes and rules in favor of defendants where substantial rights are involved. Page 360 U. S. 10It is urged that this result will fail to protect substantial rights of defendants in other cases. We see no merit in that contention, particularly where the opposite conclusion would deprive defendants of the protection of a grand jury indictment as required by the Constitution and Rule 7(a). Under our holding, there is no reason to believe that a defendant in a case such as this would be surprised on his trial by any possible trickery of the prosecution. If there is no allegation of harm in the indictment, the discovery proceedings afforded in capital cases and the provisions of Rule 7(f) authorizing bills of particulars will enable the defendant to acquaint himself with the scope of the trial and the criminal transaction to be proved. It is further suggested that it might be in the interests of the defendant to have the benefit of the speed that can be mustered by the filing of an information instead of an indictment. While justice should be administered with dispatch, the essential ingredient is orderly expedition, and not mere speed. It is well to note that, in this very case, the inordinate speed that was generated through the filing of the information caused many of the difficulties which led the court below to conclude that petitioner had been deprived of due process of law. Moreover, if, contrary to sound judicial administration in our federal system, arrest and incarceration are followed by inordinate delay prior to indictment, a defendant may, under appropriate circumstances, invoke the protection of the Sixth Amendment.Under our view of Rule 7(a), the United States Attorney did not have authority to file an information in this case, and the waivers made by petitioner were not binding, and did not confer power on the convicting court to hear the case. Cf. Ex parte Wilson, supra. The judgment and conviction are reversed, and the case is remanded to the District Court with instructions to dismiss the information.It is so ordered | U.S. Supreme CourtSmith v. United States, 360 U.S. 1 (1959)Smith v. United StatesNo. 90Argued January 21, 1959Decided June 8, 1959360 U.S. 1SyllabusSince a violation of the Federal Kidnapping Act, 18 U.S.C. § 1201, may be punishable by death if the victim was not liberated unharmed and if the jury so recommends, petitioner's prosecution for a violation of that Act by information, instead of indictment, violated Rule 7(a) of the Federal Rules of Criminal Procedure, which provides that "An offense which may be punishable by death shall be prosecuted by indictment," and his conviction was invalid -- even though he waived indictment and it was not alleged or proved that the victim was harmed. Pp. 360 U. S. 2-10.(a) The statute, 18 U.S.C. § 1201, creates the single offense of transporting a kidnapping victim across state lines, which may be punished by death if sufficient evidence of harm to the victim is introduced at the trial, and such an offense must be prosecuted by indictment. Pp. 360 U. S. 8-9.(b) The substantial safeguards to the accused provided by the requirement that such an offense be prosecuted by indictment cannot be eradicated on the theory that noncompliance is a mere technical departure from the rules. P. 360 U. S. 9.(c) Under Rule 7(a), the United States Attorney did not have authority to file an information in this case, and the waivers made by petitioner were not binding, and did not confer power on the convicting court to hear the case. P. 360 U. S. 10.250 F.2d 842 reversed. Page 360 U. S. 2 |
328 | 1982_82-276 | JUSTICE POWELL delivered the opinion of the Court.Petitioner Raymond Dirks received material nonpublic information from "insiders" of a corporation with which he had no connection. He disclosed this information to investors who relied on it in trading in the shares of the corporation. The question is whether Dirks violated the antifraud provisions of the federal securities laws by this disclosure.IIn 1973, Dirks was an officer of a New York broker-dealer firm who specialized in providing investment analysis of insurance company securities to institutional investors. [Footnote 1] On Page 463 U. S. 649 March 6, Dirks received information from Ronald Secrist, a former officer of Equity Funding of America. Secrist alleged that the assets of Equity Funding, a diversified corporation primarily engaged in selling life insurance and mutual funds, were vastly overstated as the result of fraudulent corporate practices. Secrist also stated that various regulatory agencies had failed to act on similar charges made by Equity Funding employees. He urged Dirks to verify the fraud and disclose it publicly.Dirks decided to investigate the allegations. He visited Equity Funding's headquarters in Los Angeles and interviewed several officers and employees of the corporation. The senior management denied any wrongdoing, but certain corporation employees corroborated the charges of fraud. Neither Dirks nor his firm owned or traded any Equity Funding stock, but, throughout his investigation, he openly discussed the information he had obtained with a number of clients and investors. Some of these persons sold their holdings of Equity Funding securities, including five investment advisers who liquidated holdings of more than $16 million. [Footnote 2]While Dirks was in Los Angeles, he was in touch regularly with William Blundell, the Wall Street Journal's Los Angeles bureau chief. Dirks urged Blundell to write a story on the fraud allegations. Blundell did not believe, however, that such a massive fraud could go undetected, and declined to Page 463 U. S. 650 write the story. He feared that publishing such damaging hearsay might be libelous.During the 2-week period in which Dirks pursued his investigation and spread word of Secrist's charges, the price of Equity Funding stock fell from $26 per share to less than $15 per share. This led the New York Stock Exchange to halt trading on March 27. Shortly thereafter, California insurance authorities impounded Equity Funding's records and uncovered evidence of the fraud. Only then did the Securities and Exchange Commission (SEC) file a complaint against Equity Funding, [Footnote 3] and only then, on April 2, did the Wall Street Journal publish a front page story based largely on information assembled by Dirks. Equity Funding immediately went into receivership. [Footnote 4]The SEC began an investigation into Dirks' role in the exposure of the fraud. After a hearing by an Administrative Law Judge, the SEC found that Dirks had aided and abetted violations of § 17(a) of the Securities Act of 1933, 48 Stat. 84, as amended, 15 U.S.C. § 77q(a), [Footnote 5] § 10(b) of the Securities Page 463 U. S. 651 Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b), [Footnote 6] and SEC Rule 10b-5, 17 CFR § 240.10b-5 (1983), [Footnote 7] by repeating the allegations of fraud to members of the investment community who later sold their Equity Funding stock. The SEC concluded:"Where 'tippees' -- regardless of their motivation or occupation -- come into possession of material 'corporate information that they know is confidential and know or should know came from a corporate insider,' they must either publicly disclose that information or refrain from trading."21 S.E.C. Docket 1401, 1407 (1981) (footnote omitted) (quoting Chiarella v. United States, 445 U. S. 222, 445 U. S. 230, n. 12 (1980)). Recognizing, however, that Dirks "played an important role in bringing [Equity Funding's] massive fraud Page 463 U. S. 652 to light," 21 S.E.C. Docket at 1412, [Footnote 8] the SEC only censured him. [Footnote 9]Dirks sought review in the Court of Appeals for the District of Columbia Circuit. The court entered judgment against Dirks "for the reasons stated by the Commission in its opinion." App. to Pet. for Cert. C-2. Judge Wright, a member of the panel, subsequently issued an opinion. Judge Robb concurred in the result, and Judge Tamm dissented; neither filed a separate opinion. Judge Wright believed that"the obligations of corporate fiduciaries pass to all those to whom they disclose their information before it has been disseminated to the public at large."220 U.S.App.D.C. 309, 324, 681 F.2d 824, 839 (1982). Alternatively, Judge Wright concluded that, as an employee of a broker-dealer, Dirks had violated "obligations to the SEC and to the public completely independent of any obligations he acquired" as a result of receiving the information. Id. at 325, 681 F.2d at 840.In view of the importance to the SEC and to the securities industry of the question presented by this case, we granted a writ of certiorari. 459 U.S. 1014 (1982). We now reverse. Page 463 U. S. 653IIIn the seminal case of In re Cady, Roberts & Co., 40 S.E.C. 907 (1961), the SEC recognized that the common law in some jurisdictions imposes on "corporate insiders,' particularly officers, directors, or controlling stockholders" an "affirmative duty of disclosure . . . when dealing in securities." Id. at 911, and n. 13. [Footnote 10] The SEC found that not only did breach of this common law duty also establish the elements of a Rule 10b-5 violation, [Footnote 11] but that individuals other than corporate insiders could be obligated either to disclose material nonpublic information [Footnote 12] before trading or to abstain from trading altogether. Id. at 912. In Chiarella, we accepted the two elements set out in Cady, Roberts for establishing a Rule 10b-5 violation:"(i) the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and (ii) the unfairness of allowing a corporate insider to take advantage of that information Page 463 U. S. 654 by trading without disclosure."445 U.S. at 445 U. S. 227. In examining whether Chiarella had an obligation to disclose or abstain, the Court found that there is no general duty to disclose before trading on material nonpublic information, [Footnote 13] and held that "a duty to disclose under § 10(b) does not arise from the mere possession of nonpublic market information." Id. at 445 U. S. 235. Such a duty arises, rather, from the existence of a fiduciary relationship. See id. at 445 U. S. 227-235.Not "all breaches of fiduciary duty in connection with a securities transaction," however, come within the ambit of Rule 10b-5. Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 430 U. S. 472 (1977). There must also be "manipulation or deception." Id. at 430 U. S. 473. In an inside trading case, this fraud derives from the "inherent unfairness involved where one takes advantage" of "information intended to be available only for a corporate purpose and not for the personal benefit of anyone." In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 S.E.C. 933, 936 (1968). Thus, an insider will be liable under Rule 10b-5 for inside trading only where he fails to disclose material nonpublic information before trading on it, and thus makes "secret profits." Cady, Roberts, supra, at 916, n. 31.IIIWe were explicit in Chiarella in saying that there can be no duty to disclose where the person who has traded on inside information"was not [the corporation's] agent, . . . was not a fiduciary, [or] was not a person in whom the sellers [of the securities] had placed their trust and confidence."445 U.S. at 445 U. S. 232. Not to require such a fiduciary relationship, we recognized, would "depar[t] radically from the established doctrine that duty arises from a specific relationship between Page 463 U. S. 655 two parties," and would amount to"recognizing a general duty between all participants in market transactions to forgo actions based on material, nonpublic information."Id. at 445 U. S. 232, 445 U. S. 233. This requirement of a specific relationship between the shareholders and the individual trading on inside information has created analytical difficulties for the SEC and courts in policing tippees who trade on inside information. Unlike insiders who have independent fiduciary duties to both the corporation and its shareholders, the typical tippee has no such relationships. [Footnote 14] In view of this absence, it has been unclear how a tippee acquires the Cady, Roberts duty to refrain from trading on inside information.AThe SEC's position, as stated in its opinion in this case, is that a tippee "inherits" the Cady, Roberts obligation to shareholders whenever he receives inside information from an insider:"In tipping potential traders, Dirks breached a duty which he had assumed as a result of knowingly receiving Page 463 U. S. 656 confidential information from [Equity Funding] insiders. Tippees such as Dirks who receive nonpublic, material information from insiders become 'subject to the same duty as [the] insiders.' Shapiro v. Merrill Lynch, Pierce, Fenner & Smith, Inc. [495 F.2d 228, 237 (CA2 1974) (quoting Ross v. Licht, 263 F. Supp. 395, 410 (SDNY 1967))]. Such a tippee breaches the fiduciary duty which he assumes from the insider when the tippee knowingly transmits the information to someone who will probably trade on the basis thereof. . . . Presumably, Dirks' informants were entitled to disclose the [Equity Funding] fraud in order to bring it to light and its perpetrators to justice. However, Dirks -- standing in their shoes -- committed a breach of the fiduciary duty which he had assumed in dealing with them, when he passed the information on to traders."21 S.E.C. Docket at 1410, n. 42.This view differs little from the view that we rejected as inconsistent with congressional intent in Chiarella. In that case, the Court of Appeals agreed with the SEC and affirmed Chiarella's conviction, holding that"[a]nyon -- corporate insider or not -- who regularly receives material nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose."United States v. Chiarella, 588 F.2d 1358, 1365 (CA2 1978) (emphasis in original). Here, the SEC maintains that anyone who knowingly receives nonpublic material information from an insider has a fiduciary duty to disclose before trading. [Footnote 15] Page 463 U. S. 657In effect, the SEC's theory of tippee liability in both cases appears rooted in the idea that the antifraud provisions require equal information among all traders. This conflicts with the principle set forth in Chiarella that only some persons, under some circumstances, will be barred from trading while in possession of material nonpublic information. [Footnote 16] Judge Wright correctly read our opinion in Chiarella as repudiating any notion that all traders must enjoy equal information before trading:"[T]he 'information' theory is rejected. Because the disclose-or-refrain duty is extraordinary, it attaches only when a party has legal obligations other than a mere duty to comply with the general antifraud proscriptions in the federal securities laws."220 U.S.App.D.C. at 322, 681 F.2d at 837. See Chiarella, 445 U.S. at 445 U. S. 235, n. 20. We reaffirm today that"[a] duty [to disclose] Page 463 U. S. 658 arises from the relationship between parties . . . , and not merely from one's ability to acquire information because of his position in the market."Id. at 445 U. S. 231-232, n. 14.Imposing a duty to disclose or abstain solely because a person knowingly receives material nonpublic information from an insider and trades on it could have an inhibiting influence on the role of market analysts, which the SEC itself recognizes is necessary to the preservation of a healthy market. [Footnote 17] It is commonplace for analysts to "ferret out and analyze information," 21 S.E.C. Docket at 1406, [Footnote 18] and this often is done by meeting with and questioning corporate officers and others who are insiders. And information that the analysts Page 463 U. S. 659 obtain normally may be the basis for judgments as to the market worth of a corporation's securities. The analyst's judgment in this respect is made available in market letters or otherwise to clients of the firm. It is the nature of this type of information, and indeed of the markets themselves, that such information cannot be made simultaneously available to all of the corporation's stockholders or the public generally.BThe conclusion that recipients of inside information do not invariably acquire a duty to disclose or abstain does not mean that such tippees always are free to trade on the information. The need for a ban on some tippee trading is clear. Not only are insiders forbidden by their fiduciary relationship from personally using undisclosed corporate information to their advantage, but they also may not give such information to an outsider for the same improper purpose of exploiting the information for their personal gain. See 15 U.S.C. § 78t(b) (making it unlawful to do indirectly "by means of any other person" any act made unlawful by the federal securities laws). Similarly, the transactions of those who knowingly participate with the fiduciary in such a breach are "as forbidden" as transactions "on behalf of the trustee himself." Mosser v. Darrow, 341 U. S. 267, 341 U. S. 272 (1951). See Jackson v. Smith, 254 U. S. 586, 254 U. S. 589 (1921); Jackson v. Ludeling, 21 Wall. 616, 88 U. S. 631-632 (1874). As the Court explained in Mosser, a contrary rule "would open up opportunities for devious dealings in the name of others that the trustee could not conduct in his own." 341 U.S. at 341 U. S. 271. See SEC v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1308 (CA2), cert. denied, 404 U.S. 1005 (1971). Thus, the tippee's duty to disclose or abstain is derivative from that of the insider's duty. See Tr. of Oral Arg. 38. Cf. Chiarella, 445 U.S. at 445 U. S. 246, n. 1 (BLACKMUN, J., dissenting). As we noted in Chiarella,"[t]he tippee's obligation has been viewed as arising from his role as a participant after the fact in the insider's breach of a fiduciary duty."Id. at 445 U. S. 230, n. 12. Page 463 U. S. 660Thus, some tippees must assume an insider's duty to the shareholders not because they receive inside information, but rather because it has been made available to them improperly. [Footnote 19] And, for Rule 10b-5 purposes, the insider's disclosure is improper only where it would violate his Cady, Roberts duty. Thus, a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach. [Footnote 20] As Commissioner Smith perceptively observed Page 463 U. S. 661 in In re Investors Management Co., 44 S.E.C. 633 (1971):"[T]ippee responsibility must be related back to insider responsibility by a necessary finding that the tippee knew the information was given to him in breach of a duty by a person having a special relationship to the issuer not to disclose the information. . . ."Id. at 651 (concurring in result). Tipping thus properly is viewed only as a means of indirectly violating the Cady, Roberts disclose-or-abstain rule. [Footnote 21]CIn determining whether a tippee is under an obligation to disclose or abstain, it this is necessary to determine whether the insider's "tip" constituted a breach of the insider's fiduciary duty. All disclosures of confidential corporate information Page 463 U. S. 662 are not inconsistent with the duty insiders owe to shareholders. In contrast to the extraordinary facts of this case, the more typical situation in which there will be a question whether disclosure violates the insider's Cady, Roberts duty is when insiders disclose information to analysts. See n 16, supra. In some situations, the insider will act consistently with his fiduciary duty to shareholders, and yet release of the information may affect the market. For example, it may not be clear -- either to the corporate insider or to the recipient analyst -- whether the information will be viewed as material nonpublic information. Corporate officials may mistakenly think the information already has been disclosed, or that it is not material enough to affect the market. Whether disclosure is a breach of duty therefore depends in large part on the purpose of the disclosure. This standard was identified by the SEC itself in Cady, Roberts: a purpose of the securities laws was to eliminate "use of inside information for personal advantage." 40 S.E.C. at 912, n. 15. See n 10, supra. Thus, the test is whether the insider personally will benefit, directly or indirectly, from his disclosure. Absent some personal gain, there has been no breach of duty to stockholders. And absent a breach by the insider, there is no derivative breach. [Footnote 22] As Commissioner Smith stated in Investors Management Co.:"It is important in this type of Page 463 U. S. 663 case to focus on policing insiders and what they do . . . rather than on policing information per se and its possession. . . ."44 S.E.C. at 648 (concurring in result).The SEC argues that, if inside trading liability does not exist when the information is transmitted for a proper purpose but is used for trading, it would be a rare situation when the parties could not fabricate some ostensibly legitimate business justification for transmitting the information. We think the SEC is unduly concerned. In determining whether the insider's purpose in making a particular disclosure is fraudulent, the SEC and the courts are not required to read the parties' minds. Scienter in some cases is relevant in determining whether the tipper has violated his Cady, Roberts duty. [Footnote 23] But to determine whether the disclosure itself "deceive[s], manipulate[s], or defraud[s]" shareholders, Aaron v. SEC, 446 U. S. 680, 446 U. S. 686 (1980), the initial inquiry is whether there has been a breach of duty by the insider. This requires courts to focus on objective criteria, i.e., whether the insider receives a direct or indirect personal benefit from the disclosure, such as a pecuniary gain or a reputational benefit that will translate into future earnings. Cf. 40 S.E.C. at 912, n. 15; Brudney, Insiders, Outsiders, and Informational Advantages Under the Federal Securities Page 463 U. S. 664 Laws, 93 Harv.L.Rev. 322, 348 (1979) ("The theory . . . is that the insider, by giving the information out selectively, is in effect selling the information to its recipient for cash, reciprocal information, or other things of value for himself . . ."). There are objective facts and circumstances that often justify such an inference. For example, there may be a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the particular recipient. The elements of fiduciary duty and exploitation of nonpublic information also exist when an insider makes a gift of confidential information to a trading relative or friend. The tip and trade resemble trading by the insider himself followed by a gift of the profits to the recipient.Determining whether an insider personally benefits from a particular disclosure, a question of fact, will not always be easy for courts. But it is essential, we think, to have a guiding principle for those whose daily activities must be limited and instructed by the SEC's inside trading rules, and we believe that there must be a breach of the insider's fiduciary duty before the tippee inherits the duty to disclose or abstain. In contrast, the rule adopted by the SEC in this case would have no limiting principle. [Footnote 24] Page 463 U. S. 665IVUnder the inside trading and tipping rules set forth above, we find that there was no actionable violation by Dirks. [Footnote 25] It is undisputed that Dirks himself was a stranger to Equity Funding, with no preexisting fiduciary duty to its shareholders. [Footnote 26] He took no action, directly or indirectly, that induced the shareholders or officers of Equity Funding to repose trust or confidence in him. There was no expectation by Dirks' sources that he would keep their information in confidence. Nor did Dirks misappropriate or illegally obtain the information about Equity Funding. Unless the insiders breached their Cady, Roberts duty to shareholders in disclosing the nonpublic information to Dirks, he breached no duty when he passed it on to investors as well as to the Wall Street Journal. Page 463 U. S. 666It is clear that neither Secrist nor the other Equity Funding employees violated their Cady, Roberts duty to the corporation's shareholders by providing information to Dirks. [Footnote 27] Page 463 U. S. 667 The tippers received no monetary or personal benefit for revealing Equity Funding's secrets, nor was their purpose to make a gift of valuable information to Dirks. As the facts of this case clearly indicate, the tippers were motivated by a desire to expose the fraud. See supra at 463 U. S. 648-649. In the absence of a breach of duty to shareholders by the insiders, there was no derivative breach by Dirks. See n 20, supra. Dirks therefore could not have been "a participant after the fact in [an] insider's breach of a fiduciary duty." Chiarella, 445 U.S. at 445 U. S. 230, n. 12.VWe conclude that Dirks, in the circumstances of this case, had no duty to abstain from use of the inside information that he obtained. The judgment of the Court of Appeals therefore isReversed | U.S. Supreme CourtDirks v. SEC, 463 U.S. 646 (1983)Dirks v. SECNo. 82-276Argued March 21, 1983Decided July 1, 1983463 U.S. 646SyllabusWhile serving as an officer of a broker-dealer, petitioner, who specialized in providing investment analysis of insurance company securities to institutional investors, received information from a former officer of an insurance company that its assets were vastly overstated as the result of fraudulent corporate practices, and that various regulatory agencies had failed to act on similar charges made by company employees. Upon petitioner's investigation of the allegations, certain company employees corroborated the fraud charges, but senior management denied any wrongdoing. Neither petitioner nor his firm owned or traded any of the company's stock, but, throughout his investigation, he openly discussed the information he had obtained with a number of clients and investors, some of whom sold their holdings in the company. The Wall Street Journal declined to publish a story on the fraud allegations, as urged by petitioner. After the price of the insurance company's stock fell during petitioner's investigation, the New York Stock Exchange halted trading in the stock. State insurance authorities then impounded the company's records and uncovered evidence of fraud. Only then did the Securities and Exchange Commission (SEC) file a complaint against the company, and only then did the Wall Street Journal publish a story based largely on information assembled by petitioner. After a hearing concerning petitioner's role in the exposure of the fraud, the SEC found that he had aided and abetted violations of the antifraud provisions of the federal securities laws, including § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, by repeating the allegations of fraud to members of the investment community who later sold their stock in the insurance company. Because of petitioner's role in bringing the fraud to light, however, the SEC only censured him. On review, the Court of Appeals entered judgment against petitioner.Held:1. Two elements for establishing a violation of § 10(b) and Rule 10b-5 by corporate insiders are the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and the unfairness of allowing a corporate insider to take advantage Page 463 U. S. 647 of that information by trading without disclosure. A duty to disclose or abstain does not arise from the mere possession of nonpublic market information. Such a duty arises rather from the existence of a fiduciary relationship. Chiarella v. United States, 445 U. S. 222. There must also be "manipulation or deception" to bring a breach of fiduciary duty in connection with a securities transaction within the ambit of Rule 10b-5. Thus, an insider is liable under the Rule for inside trading only where he fails to disclose material nonpublic information before trading on it, and thus makes secret profits. Pp. 463 U. S. 653-654.2. Unlike insiders who have independent fiduciary duties to both the corporation and its shareholders, the typical tippee has no such relationships. There must be a breach of the insider's fiduciary duty before the tippee inherits the duty to disclose or abstain. Pp. 463 U. S. 654-664.(a) The SEC's position that a tippee who knowingly receives nonpublic material information from an insider invariably has a fiduciary duty to disclose before trading rests on the erroneous theory that the antifraud provisions require equal information among all traders. A duty to disclose arises from the relationship between parties, and not merely from one's ability to acquire information because of his position in the market. Pp. 463 U. S. 655-659.(b) A tippee, however, is not always free to trade on inside information. His duty to disclose or abstain is derivative from that of the insider's duty. Tippees must assume an insider's duty to the shareholders not because they receive inside information, but rather because it has been made available to them improperly. Thus, a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach. Pp. 463 U. S. 659-661.(c) In determining whether a tippee is under an obligation to disclose or abstain, it is necessary to determine whether the insider's "tip" constituted a breach of the insider's fiduciary duty. Whether disclosure is a breach of duty depends in large part on the personal benefit the insider receives as a result of the disclosure. Absent an improper purpose, there is no breach of duty to stockholders. And absent a breach by the insider, there is no derivative breach. Pp. 463 U. S. 661-664.3. Under the inside-trading and tipping rules set forth above, petitioner had no duty to abstain from use of the inside information that he obtained, and thus there was no actionable violation by him. He had no preexisting fiduciary duty to the insurance company's shareholders. Moreover, the insurance company's employees, as insiders, did not violate Page 463 U. S. 648 their duty to the company's shareholders by providing information to petitioner. In the absence of a breach of duty to shareholders by the insiders, there was no derivative breach by petitioner. Pp. 463 U. S. 665-667.220 U.S.App.D.C. 309, 681 F.2d 824, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 463 U. S. 667. |
329 | 1955_621 | MR. JUSTICE MINTON delivered the opinion of the Court.The question we have for decision here is whether petitioner, a clerical employee of respondent railroad, is within the coverage of the Federal Employers' Liability Act, § 1, 35 Stat. 65, as amended, 53 Stat. 1404, 45 U.S.C. § 51. Petitioner is employed entirely in respondent's office building in Philadelphia. Her duties consist of filing original tracings of all of respondent's engines, cars, parts, tracks, bridges, and other structures, from which blueprints of those items are made. There are some 325,000 tracings on file in the office in which petitioner works. Whenever an order for blueprints comes in from anywhere in respondent's system, it is petitioner's responsibility to fill the order by securing the correct tracings from the files. These she takes to the blueprint maker in the same office building. After the blueprints are made, it is petitioner's further duty to return the original tracings to the appropriate file. About 67% of the blueprints so made are sent to points outside Pennsylvania. The files which petitioner attends are the sole depository of the original tracings of the structural details of all of respondent's rolling stock, trackage, and other equipment and installations, and, as such, represent a fund of documents without which maintenance of the operating system would be impossible.Petitioner was injured when a cracked window pane in her office blew in upon her. She brought suit for personal injury under the Federal Employers' Liability Act. On respondent's motion to dismiss, the District Court held that petitioner was not within the coverage of § 1 of the Act and, there being no diversity of citizenship between the parties, dismissed the complaint for lack of jurisdiction. The Court of Appeals affirmed. 227 F.2d 810. Page 351 U. S. 504 We granted certiorari because of the importance of the question presented in the administration of the Act. 350 U.S. 965.As originally enacted, § 1 provided that every railroad, "while engaging" in interstate commerce,"shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."35 Stat. 65. A further paragraph was added to the section in 1939, and it is clear that two specific problems which the amendment sought at least to remedy were the results of this Court's holdings that, at the moment of his injury, the employee as well as the railroad had to be engaged in interstate commerce in order to come within the coverage of § 1, and that employees engaged in construction of new facilities were not covered. S.Rep.No. 661, 76th Cong., 1st Sess. 2-3; Southern Pacific Co. v. Gileo, decided today, ante, p. 351 U. S. 493. The amendment took the form of an expanded definition of "person . . . employed" in interstate commerce. The amendment reads:"Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce, or shall in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce, and shall be considered as entitled to the benefits of this Act. . . ."53 Stat. 1404. Page 351 U. S. 505No argument is made that Congress could not constitutionally include petitioner within the coverage of the Act. The argument is that the amendment was narrowly drawn to remedy specific evils, and that to construe it to include petitioner would amount to inclusion in the Act of virtually all railroad employees -- a result which respondent assumes is unintended and undesirable. The argument takes several forms. First, it is said that "commerce" in the Act means only transportation, and that petitioner is not employed in transportation. See Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 239 U. S. 559-560. But the interstate commerce in which respondent is engaged is interstate transportation. If "any part" of petitioner's duties is in "furtherance" of or substantially affects interstate commerce, it also is in "furtherance" of or substantially affects interstate transportation. The test for coverage under the amendment is not whether the employee is engaged in transportation, but rather whether what he does in any way furthers or substantially affects transportation. Nor can we resolve the issue presented here in terms of whether or not clerical employees as a class are excluded from the benefits of the statute. The 1939 amendment was designed to obliterate fine distinctions as to coverage between employees who, for the purpose of this remedial legislation, should be treated alike. There is no meaningful distinction, in terms of whether the employee's duties are clerical or not, between petitioner and, for illustration, an assistant chief timekeeper, Straub v. Reading Co., 220 F.2d 177, or a messenger boy carrying waybills and grain orders between separate local offices and freight stations, Bowers v. Wabash R. Co., 246 S.W.2d 535, or a lumber inspector hurt while inspecting ties at a lumber company, Ericksen v. Southern Pacific Co., 39 Cal. 2d 374, 246 P.2d 642 -- all of whom have been held covered by the 1939 amendment. See also Lillie v. Thompson, 332 U. S. 459. Nor are the benefits of the Page 351 U. S. 506 Act limited to those exposed to the special hazards of the railroad industry. The Act has not been so interpreted, and the 1939 amendment specifically affords protection to "any employee" whose duties bring him within that amendment. There is no basis in the language of § 1 for confining liability of the railroad so as to exclude any class of railroad employees as a class. The benefits of the Act are not limited to those who have cinders in their hair, soot on their faces, or callouses on their hands. Section 1 cannot be interpreted to exclude petitioner from its benefits without further consideration of the function she performs and its impact on interstate commerce.We think that the present petitioner is employed by the respondent in interstate commerce within the meaning of the 1939 amendment to § 1. Although the amendment may have been prompted by a specific desire to obviate certain court-made rules limiting coverage, the language used goes far beyond that narrow objective. It evinces a purpose to expand coverage substantially, as well as to avoid narrow distinctions in deciding questions of coverage. Under the amendment, it is the "duties" of the employee that must further or affect commerce, and it is enough if "any part" of those duties has the requisite effect. The statute commands us to examine the purpose and effect of the employee's function in the railroad's interstate operation, without limitation to nonclerical employees or determination on the basis of the employee's importance as an individual in the railroad's organization.Here, respondent railroad has chosen to arrange its operations so that repairs and construction anywhere within its system which require blueprints must go through its Philadelphia office. No such work can be done without recourse to the files of 325,000 original tracings in petitioner's custody. Loss or misplacing of those tracings could promptly cause delay, confusion, or worse in the day-to-day operation of respondent's lines. If all employees Page 351 U. S. 507 who perform petitioner's duties were removed from service, respondent could not conduct its operations without a change in its organizational system. To recognize this is to attribute to petitioner neither an exaggerated nor an attenuated relationship to respondent's transportation system. The filing of tracings and the dispatch of blueprints taken from them comprise a direct link in the maintenance of respondent's lines and rolling stock. Together with the makers of blueprints, petitioner constitutes the means by which men throughout respondent's system obtain the information they must have to maintain the railroad's trains, equipment, track, and structures.The very purpose of petitioner's job is to further physical maintenance of an interstate railroad system. Proper performance of her duties makes an obvious contribution to the maintenance of that system. We hold that the petitioner, by the performance of her duties, is furthering the interstate transportation in which the respondent is engaged. "The word furtherance' is a comprehensive term. Its periphery may be vague, but admittedly it is both large and elastic." Shelton v. Thomson, 148 F.2d 1, 3. Petitioner's duties here come within the confines of that concept.Similarly, those duties which "in any way directly or closely and substantially affect" interstate commerce in the railroad industry must necessarily be marked out through the process of case-by-case adjudication. This definition and the "furtherance" definition of employment in interstate commerce in the 1939 amendment are set forth in the disjunctive. In some situations, they may overlap. Here, we hold that, for the reasons already given, performance of petitioner's duties has a close and substantial effect upon the operation of respondent's interstate activities. Cf. Overstreet v. North Shore Corp., 318 U. S. 125. Page 351 U. S. 508Petitioner's duties brought her within the coverage of § 1 as amended, and the District Court therefore had jurisdiction over this suit under the Federal Employers' Liability Act. The judgment below is reversed, and the cause remanded to the District Court for further proceedings.Reversed | U.S. Supreme CourtReed v. Pennsylvania R. Co., 351 U.S. 502 (1956)Reed v. Pennsylvania Railroad Co.No. 621Argued May 1, 1956Decided June 11, 1956351 U.S. 502SyllabusPetitioner is a clerical employee of an interstate railroad whose duties consist of filing original tracings of all of the carrier's rolling stock, equipment and structures, from which tracings blueprints are made. Without these documents, maintenance of the carrier's operating system would be impossible. Petitioner was injured in her office when a cracked window pane blew in upon her.Held: Petitioner is within the coverage of the Federal Employers' Liability Act, as amended in 1939; and the Federal District Court has jurisdiction of her suit under the Act. Pp. 351 U. S. 503-508.(a) The test for coverage under the amended Act is not whether the employee is engaged in interstate transportation, but whether what he does in any way furthers or substantially affects interstate transportation. P. 351 U. S. 505.(b) The issue in this case cannot be resolved in terms of whether or not clerical employees as a class are excluded from the benefits of the Act. Pp. 351 U. S. 505-506.(c) Petitioner is employed in interstate commerce within the meaning of the 1939 amendment to § 1 of the Act. Pp. 351 U. S. 506-507.(d) The performance by petitioner of her duties is in "furtherance" of interstate commerce, and has a close and substantial effect upon the railroad's interstate activities. P. 351 U. S. 507.227 F.2d 810 reversed. Page 351 U. S. 503 |
330 | 1986_85-608 | JUSTICE BLACKMUN delivered the opinion of the Court.In United States v. Leon, 468 U. S. 897 (1984), this Court ruled that the Fourth Amendment exclusionary rule does not apply to evidence obtained by police officers who acted in objectively reasonable reliance upon a search warrant issued by a neutral magistrate, but where the warrant was ultimately found to be unsupported by probable cause. See also Massachusetts v. Sheppard, 468 U. S. 981 (1984). The present case presents the question whether a similar exception to the exclusionary rule should be recognized when officers act in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but where the statute is ultimately found to violate the Fourth Amendment.IThe State of Illinois, as part of its Vehicle Code, has a comprehensive statutory scheme regulating the sale of motor vehicles and vehicular parts. See Ill.Rev.Stat., ch. 951/2, �� 5-100 to 5-801 (1985). A person who sells motor vehicles, or deals in automotive parts, or processes automotive scrap metal, or engages in a similar business must obtain a license from the Illinois Secretary of State. �� 5-101, 5-102, 5-301. Page 480 U. S. 343 A licensee is required to maintain a detailed record of all motor vehicles and parts that he purchases or sells, including the identification numbers of such vehicles and parts, and the dates of acquisition and disposition. � 5-401.2. In 1981, the statute in its then form required a licensee to permit state officials to inspect these records "at any reasonable time during the night or day" and to allow"examination of the premises of the licensee's established place of business for the purpose of determining the accuracy of required records."Ill.Rev.Stat., ch. 95 1/2, 115-401(e) (1981). [Footnote 1]Respondents in 1981 operated Action Iron & Metal, Inc., an automobile wrecking yard located in the city of Chicago. Detective Leilan K. McNally of the Chicago Police Department regularly inspected the records of wrecking yards pursuant to the state statute. Tr. 12. [Footnote 2] On the morning of July 5, 1981, he entered respondents' yard. Id. at 7. He identified himself as a police officer to respondent Lucas, who was working at the yard, and asked to see the license and records of vehicle purchases. Lucas could not locate the license or records, but he did produce a paper pad on which approximately five vehicle purchases were listed. Id. at 25-26. McNally then requested and received permission from Lucas to look at the cars in the yard. Upon checking with his mobile computer the serial numbers of several of the vehicles, McNally ascertained that three of them were stolen. Also, the identification number of a fourth had been removed. McNally seized the four vehicles and placed Lucas under arrest. Id. at 8-9, 16-17. Respondent Krull, the holder of the license, and respondent Mucerino, who was present at the yard the day of the search, were arrested later. Respondents Page 480 U. S. 344 were charged with various criminal violations of the Illinois motor vehicle statutes.The state trial court (the Circuit Court of Cook County) granted respondents' motion to suppress the evidence seized from the yard. App. 20-21. Respondents had relied on a federal court ruling, issued the day following the search, that 115-401(e), authorizing warrantless administrative searches of licensees, was unconstitutional. See Bionic Auto Parts & Sales, Inc. v. Fahner, 518 F. Supp. 582 (ND Ill. 1981), aff'd, in part, vacated in part, and remanded in part, 721 F.2d 1072 Page 480 U. S. 345 (CA7 1983). The Federal District Court in that case had concluded that the statute permitted officers unbridled discretion in their searches and was therefore not "a constitutionally adequate substitute for a warrant.'" 518 F. Supp. at 585-586, quoting Donovan v. Dewey, 452 U. S. 594, 452 U. S. 603 (1981). The state trial court in the instant case agreed that the statute was invalid, and concluded that its unconstitutionality "affects all pending prosecutions not completed." App. 20. On that basis, the trial court granted respondents' motion to suppress the evidence. Id. at 20-21. [Footnote 3]The Appellate Court of Illinois, First Judicial District, vacated the trial court's ruling and remanded the case for further proceedings. Id. at 22. It observed that recent developments in the law indicated that Detective McNally's good faith reliance on the state statute might be relevant in assessing the admissibility of evidence, but that the trial court should first make a factual determination regarding McNally's good faith. Id. at 25. It also observed that the trial court might wish to reconsider its holding regarding the unconstitutionality of the statute in light of the decision by the United States Court of Appeals for the Seventh Circuit upholding the amended form of the Illinois statute. See Bionic Auto Parts & Sales, Inc. v. Fahner, 721 F.2d 1072 (CA7 1983). [Footnote 4] On remand, however, the state trial court adhered to its decision to grant respondents' motion to suppress. It stated that the relevant statute was the one in effect at the time McNally searched respondents' yard, and that this statute was unconstitutional for the reasons stated by the Federal District Court in Bionic. It further concluded that, because the good faith of an officer is relevant, if at all, only when he acts pursuant to a warrant, Detective McNally's possible good faith reliance upon the statute had no bearing on the case. App. 32-35. [Footnote 5]The Supreme Court of Illinois affirmed. [Footnote 6] 107 Ill. 2d 107, 481 N.E.2d 703 (1985). It first ruled that the state statute, as it existed at the time McNally searched respondents' yard, was unconstitutional. It noted that statutes authorizing Page 480 U. S. 346 warrantless administrative searches in heavily regulated industries had been upheld where such searches were necessary to promote enforcement of a substantial state interest, and where the statute, "in terms of [the] certainty and regularity of its application, provide[d] a constitutionally adequate substitute for a warrant.'" Id. at 116, 481 N.E.2d at 707, quoting Donovan v. Dewey, 452 U.S. at 452 U. S. 603. Although acknowledging that the statutory scheme authorizing warrantless searches of licensees furthered a strong public interest in preventing the theft of automobiles and the trafficking in stolen automotive parts, the Illinois Supreme Court concluded that the statute violated the Fourth Amendment because it "vested State officials with too much discretion to decide who, when, and how long to search." 107 Ill. 2d at 116, 481 N.E.2d at 707.The court rejected the State's argument that the evidence seized from respondents' wrecking yard should nevertheless be admitted because the police officer had acted in good faith reliance on the statute authorizing such searches. The court observed that, in Michigan v. DeFillippo, 443 U. S. 31 (1979), this Court had upheld an arrest and search made pursuant to an ordinance defining a criminal offense, where the ordinance was subsequently held to violate the Fourth Amendment. The Illinois court noted that this Court, in DeFillippo, had contrasted the ordinance then before it, defining a substantive criminal offense, with a procedural statute directly authorizing searches without a warrant or probable cause, and had stated that evidence obtained in searches conducted pursuant to the latter type of statute traditionally had not been admitted. 107 Ill. 2d at 118, 481 N.E.2d.at 708. Because the Illinois statute did not define a substantive criminal offense, but, instead, was a procedural statute directly authorizing warrantless searches, the Illinois Supreme Court concluded that good faith reliance upon that statute could not be used to justify the admission of evidence under an exception to the exclusionary rule. Id. at 118-119, 481 N.E.2d at 708.We granted certiorari, 475 U.S. 1080 (1986), to consider whether a good faith exception to the Fourth Amendment exclusionary rule applies when an officer's reliance on the constitutionality of a statute is objectively reasonable, but the statute is subsequently declared unconstitutional. Page 480 U. S. 347IIAWhen evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure. Weeks v. United States, 232 U. S. 383 (1914); Mapp v. Ohio, 367 U. S. 643 (1961). The Court has stressed that the "prime purpose" of the exclusionary rule"is to deter future unlawful police conduct, and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures."United States v. Calandra, 414 U. S. 338, 414 U. S. 347 (1974). Application of the exclusionary rule "is neither intended nor able to cure the invasion of the defendant's rights which he has already suffered.'" United States v. Leon, 468 U.S. at 468 U. S. 906, quoting Stone v. Powell, 428 U. S. 465, 428 U. S. 540 (1976) (WHITE, J., dissenting). Rather, the rule"operates as 'a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.'"468 U.S. at 468 U. S. 906, quoting United States v. Calandra, 414 U.S. at 414 U. S. 348.As with any remedial device, application of the exclusionary rule properly has been restricted to those situations in which its remedial purpose is effectively advanced. Thus, in various circumstances, the Court has examined whether the rule's deterrent effect will be achieved, and has weighed the likelihood of such deterrence against the costs of withholding reliable information from the truth-seeking process. See, e.g., United States v. Janis, 428 U. S. 433, 428 U. S. 454 (1976) (evidence obtained by state officers in violation of Fourth Amendment may be used in federal civil proceeding because likelihood of deterring conduct of state officers does not outweigh societal costs imposed by exclusion); United States v. Calandra, 414 U.S. at 351-352 (evidence obtained in contravention of Fourth Amendment may be used in grand jury proceedings because minimal advance in deterrence of police Page 480 U. S. 348 misconduct is outweighed by expense of impeding role of grand jury).In Leon, the Court held that the exclusionary rule should not be applied to evidence obtained by a police officer whose reliance on a search warrant issued by a neutral magistrate was objectively reasonable, even though the warrant was ultimately found to be defective. On the basis of three factors, the Court concluded that there was no sound reason to apply the exclusionary rule as a means of deterring misconduct on the part of judicial officers who are responsible for issuing warrants. First, the exclusionary rule was historically designed "to deter police misconduct, rather than to punish the errors of judges and magistrates." 468 U.S. at 468 U. S. 916. Second, there was"no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion."Ibid. Third, and of greatest importance to the Court, there was no basis"for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate."Ibid. The Court explained:"Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions."Id. at 468 U. S. 917. Thus, the threat of exclusion of evidence could not be expected to deter such individuals from improperly issuing warrants, and a judicial ruling that a warrant was defective was sufficient to inform the judicial officer of the error made.The Court then considered whether application of the exclusionary rule in that context could be expected to alter the behavior of law enforcement officers. In prior cases, the Court had observed that, because the purpose of the exclusionary rule is to deter police officers from violating the Fourth Amendment, evidence should be suppressed"only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the Page 480 U. S. 349 search was unconstitutional under the Fourth Amendment."United States v. Peltier, 422 U. S. 531, 422 U. S. 542 (1975); see also Michigan v. Tucker, 417 U. S. 433, 417 U. S. 447 (1974). Where the officer's conduct is objectively reasonable, the Court explained in Leon,"'[e]xcluding the evidence will not further the ends of the exclusionary rule in any appreciable way, for it is painfully apparent that . . . the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty.'"United States v. Leon, 468 U.S. at 468 U. S. 920, quoting Stone v. Powell, 428 U.S. at 428 U. S. 539-540 (WHITE, J., dissenting).The Court in Leon concluded that a deterrent effect was particularly absent when an officer, acting in objective good faith, obtained a search warrant from a magistrate and acted within its scope. "In most such cases, there is no police illegality, and thus nothing to deter." 468 U.S. at 468 U. S. 920-921. It is the judicial officer's responsibility to determine whether probable cause exists to issue a warrant, and, in the ordinary case, police officers cannot be expected to question that determination. Because the officer's sole responsibility after obtaining a warrant is to carry out the search pursuant to it, applying the exclusionary rule in these circumstances could have no deterrent effect on a future Fourth Amendment violation by the officer. Id. at 468 U. S. 921.BThe approach used in Leon is equally applicable to the present case. The application of the exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have as little deterrent effect on the officer's actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant. Unless a statute is clearly unconstitutional, an Page 480 U. S. 350 officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written. To paraphrase the Court's comment in Leon:"Penalizing the officer for the [legislature's] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations."Ibid. [Footnote 7]Any difference between our holding in Leon and our holding in the instant case, therefore, must rest on a difference between the effect of the exclusion of evidence on judicial officers and the effect of the exclusion of evidence on legislators. Although these two groups clearly serve different functions in the criminal justice system, those differences are not controlling for purposes of this case. We noted in Leon, as an initial matter, that the exclusionary rule was aimed at deterring police misconduct. 468 U.S. at 468 U. S. 916. Thus, legislators, like judicial officers, are not the focus of the rule. Moreover, to the extent we consider the rule's effect on legislators, our initial inquiry, as set out in Leon, is whether there is evidence to suggest that legislators "are inclined to ignore or subvert the Fourth Amendment." Ibid. Although legislators are not "neutral judicial officers," as are judges and magistrates, id. at 468 U. S. 917, neither are they "adjuncts to the Page 480 U. S. 351 law enforcement team." Ibid. The role of legislators in the criminal justice system is to enact laws for the purpose of establishing and perpetuating that system. In order to fulfill this responsibility, legislators' deliberations of necessity are significantly different from the hurried judgment of a law enforcement officer "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U. S. 10, 333 U. S. 14 (1948). Before assuming office, state legislators are required to take an oath to support the Federal Constitution. See U.S. Const., Art. VI, cl. 3. Indeed, by according laws a presumption of constitutional validity, courts presume that legislatures act in a constitutional manner. See e.g., McDonald v. Board of Election Comm'rs of Chicago, 394 U. S. 802, 394 U. S. 808-809 (1969); see generally 1 N. Singer, Sutherland on Statutory Construction § 2.01 (4th ed.1985).There is no evidence suggesting that Congress or state legislatures have enacted a significant number of statutes permitting warrantless administrative searches violative of the Fourth Amendment. Legislatures generally have confined their efforts to authorizing administrative searches of specific categories of businesses that require regulation, and the resulting statutes usually have been held to be constitutional. See, e.g., Donovan v. Dewey, 452 U. S. 594 (1981); United States v. Biswell, 406 U. S. 311 (1972); Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970); United States v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532 (CA8 1981), cert. denied, 455 U.S. 1016 (1982); see also 3 W. LaFave, Search and Seizure § 10.2, pp. 132-134, n. 89.1 (Supp. 1986) (collecting cases). Thus, we are given no basis for believing that legislators are inclined to subvert their oaths and the Fourth Amendment and that "lawlessness among these actors requires application of the extreme sanction of exclusion." United States v. Leon, 468 U.S. at 468 U. S. 916.Even if we were to conclude that legislators are different in certain relevant respects from magistrates, because legislators are not officers of the judicial system, the next inquiry Page 480 U. S. 352 necessitated by Leon is whether exclusion of evidence seized pursuant to a statute subsequently declared unconstitutional will "have a significant deterrent effect," ibid., on legislators enacting such statutes. Respondents have offered us no reason to believe that applying the exclusionary rule will have such an effect. Legislators enact statutes for broad, programmatic purposes, not for the purpose of procuring evidence in particular criminal investigations. Thus, it is logical to assume that the greatest deterrent to the enactment of unconstitutional statutes by a legislature is the power of the courts to invalidate such statutes. Invalidating a statute informs the legislature of its constitutional error, affects the admissibility of all evidence obtained subsequent to the constitutional ruling, and often results in the legislature's enacting a modified and constitutional version of the statute, as happened in this very case. There is nothing to indicate that applying the exclusionary rule to evidence seized pursuant to the statute prior to the declaration of its invalidity will act as a significant, additional deterrent. [Footnote 8] Moreover, to the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against the "substantial social costs exacted by the exclusionary rule." Page 480 U. S. 353 Id. at 468 U. S. 907. [Footnote 9] When we indulge in such weighing, we are convinced that applying the exclusionary rule in this context is unjustified.Respondents argue that the result in this case should be different from that in Leon because a statute authorizing warrantless administrative searches affects an entire industry and a large number of citizens, while the issuance of a defective warrant affects only one person. This distinction is not persuasive. In determining whether to apply the exclusionary rule, a court should examine whether such application will advance the deterrent objective of the rule. Although the number of individuals affected may be considered when "weighing the costs and benefits," ibid., of applying the exclusionary rule, the simple fact that many are affected by a statute is not sufficient to tip the balance if the deterrence of Fourth Amendment violations would not be advanced in any meaningful way. [Footnote 10]We also do not believe that defendants will choose not to contest the validity of statutes if they are unable to benefit directly by the subsequent exclusion of evidence, thereby resulting in statutes that evade constitutional review. First, in Leon, we explicitly rejected the argument that the good faith exception adopted in that case would "preclude review Page 480 U. S. 354 of the constitutionality of the search or seizure" or would cause defendants to lose their incentive to litigate meritorious Fourth Amendment claims. We stated that"the magnitude of the benefit conferred on defendants by a successful [suppression] motion makes it unlikely that litigation of colorable claims will be substantially diminished."Id. at 468 U. S. 924, and n. 25. In an effort to suppress evidence, a defendant has no reason not to argue that a police officer's reliance on a warrant or statute was not objectively reasonable and therefore cannot be considered to have been in good faith. Second, unlike a person searched pursuant to a warrant, a person subject to a statute authorizing searches without a warrant or probable cause may bring an action seeking a declaration that the statute is unconstitutional and an injunction barring its implementation. Indeed, that course of action was followed with respect to the statute at issue in this case. Several businesses brought a declaratory judgment suit in Federal District Court challenging � 5-401(e) of the Illinois Vehicle Code (1981), and the provision was declared unconstitutional. See Bionic Auto Parts & Sales, Inc. v. Fahner, 518 F. Supp. at 585. Subsequent to that declaration, respondents, in their state court criminal trial, challenged the admissibility of evidence obtained pursuant to the statute. App. 13-17. [Footnote 11] Page 480 U. S. 355The Court noted in Leon that the "good faith" exception to the exclusionary rule would not apply"where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 (1979),"or where the warrant was so facially deficient "that the executing officers cannot reasonably presume it to be valid." 468 U.S. at 468 U. S. 923. Similar constraints apply to the exception to the exclusionary rule we recognize today. A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional. Cf. Harlow v. Fitzgerald, 457 U. S. 800, 457 U. S. 818 (1982) ("[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known"). As we emphasized in Leon, the standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers. See United States v. Leon, 468 U.S. at 468 U. S. 919, n. 20. [Footnote 12] Page 480 U. S. 356IIIApplying the principle enunciated in this case, we necessarily conclude that Detective McNally's reliance on the Page 480 U. S. 357 Illinois statute was objectively reasonable. [Footnote 13] On several occasions, this Court has upheld legislative schemes that authorized warrantless administrative searches of heavily regulated industries. See Donovan v. Dewey, 452 U. S. 594 (1981) (inspections of underground and surface mines pursuant to Federal Mine Safety and Health Act of 1977); United States v. Biswell, 406 U. S. 311 (1972) (inspections of firearms dealers under Gun Control Act of 1968); Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970) (inspections of liquor dealers under 26 U.S.C. §§ 5146(b) and 7606 (1964 ed.)). It has recognized that an inspection program may be a necessary component of regulation in certain industries, and has acknowledged that unannounced, warrantless inspections may be necessary "if the law is to be properly enforced and inspection made effective." United States v. Biswell, 406 U.S. at 406 U. S. 316; Donovan v. Dewey, 452 U.S. at 452 U. S. 603. Thus, the Court explained in Donovan that its prior decisions"make clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his Page 480 U. S. 358 property will be subject to periodic inspections undertaken for specific purposes."Id. at 452 U. S. 600.In Donovan, the Court pointed out that a valid inspection scheme must provide, "in terms of the certainty and regularity of its application . . . a constitutionally adequate substitute for a warrant." Id. at 452 U. S. 603. In Marshall v. Barlow's, Inc., 436 U. S. 307 (1978), to be sure, the Court held that a warrantless administrative Page 480 U. S. 359 search under § 8(a) of the Occupational Safety and Health Act of 1970 was invalid, partly because the"authority to make warrantless searches devolve[d] almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search."Id. at 436 U. S. 323. [Footnote 14] In contrast, the Court in Donovan concluded that the Federal Mine Safety and Health Act of 1977 imposed a system of inspection that was sufficiently tailored to the problems of unsafe conditions in mines, and was sufficiently pervasive that it checked the discretion of Government officers and established "a predictable and guided federal regulatory presence." 452 U.S. at 452 U. S. 604.Under the standards established in these cases, Detective McNally's reliance on the Illinois statute authorizing warrantless inspections of licensees was objectively reasonable. In ruling on the statute's constitutionality, the Illinois Supreme Court recognized that the licensing and inspection scheme furthered a strong public interest, for it helped to "facilitate the discovery and prevention of automobile thefts." 107 Ill. 2d at 116, 481 N.E.2d at 707. The court further concluded that it was"reasonable to assume that warrantless administrative searches are necessary in order to adequately control the theft of automobiles and automotive parts."Ibid. The Court of Appeals for the Seventh Circuit, upholding the amended version of the statute, pointed out that used car and automotive parts dealers in Illinois "are put on notice that they are entering a field subject to extensive state regulation." See Bionic Auto Parts & Sales, Inc. v. Fahner, 721 F.2d at 1079. The Illinois statute was thus directed at one specific and heavily regulated industry, the authorized warrantless searches were necessary to the effectiveness of the inspection system, and licensees were put on notice that their businesses would be subject to inspections pursuant to the state administrative scheme.According to the Illinois Supreme Court, the statute failed to pass constitutional muster solely because the statute "vested State officials with too much discretion to decide who, when, and how long to search." 107 Ill. 2d at 116, 481 N.E.2d at 707. Assuming, as we do for purposes of this case, that the Illinois Supreme Court was correct in its constitutional analysis, this defect in the statute was not sufficiently obvious so as to render a police officer's reliance upon the statute objectively unreasonable. The statute provided that searches could be conducted "at any reasonable time during the night or day," and seemed to limit the scope of the inspections to the records the businesses were required to maintain and to the business premises "for the purposes of determining the accuracy of required records." Ill.Rev.Stat., ch. 95 1/2, � 5-401(e) (1981). While statutory provisions that circumscribe officers' discretion may be important in establishing a statute's constitutionality, [Footnote 15] the additional restrictions on discretion Page 480 U. S. 360 that might have been necessary are not so obvious that an objectively reasonable police officer would have realized the statute was unconstitutional without them. [Footnote 16] We therefore conclude that Detective McNally relied, in objective good faith, on a statute that appeared legitimately to allow a warrantless administrative search of respondents' business. [Footnote 17] Page 480 U. S. 361Accordingly, the judgment of the Supreme Court of Illinois is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.It is so ordered | U.S. Supreme CourtIllinois v. Krull, 480 U.S. 340 (1987)Illinois v. KrullNo. 85-608Argued November 5, 1986Decided March 9, 1987480 U.S. 340SyllabusAn Illinois statute, as it existed in 1981, required licensed motor vehicle and vehicular parts sellers to permit state officials to inspect certain required records. In 1981, pursuant to the statute, a police detective entered respondents' automobile wrecking yard and asked to see records of vehicle purchases. He was told that the records could not be located, but was given a list of approximately five purchases. After receiving permission to look at the cars in the yard, he ascertained that three were stolen and that a fourth had had its identification number removed. He then seized the cars, and respondents were arrested and charged with various crimes. The state trial court granted respondents' motion to suppress the evidence seized from the yard, agreeing with a federal court ruling, issued the day after the search, that the state statute violated the Fourth Amendment because it permitted officers unbridled discretion in their warrantless searches. The State Supreme Court affirmed, rejecting petitioner's argument that the seized evidence was admissible because the detective had acted in good faith reliance on the statute in making the search.Held:1. The Fourth Amendment exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but which is subsequently found to violate the Fourth Amendment. Pp. 480 U. S. 349-355.(a) Application of the exclusionary rule in these circumstances would have little deterrent effect on future police misconduct, which is the basic purpose of the rule. Officers conducting such searches are simply fulfilling their responsibility to enforce the statute as written. If a statute is not clearly unconstitutional, officers cannot be expected to question the judgment of the legislature that passed the law. Pp. 480 U. S. 349-350.(b) Application of the exclusionary rule cannot be justified on the basis of deterring legislative misconduct. Police, not legislators, are the focus of the rule. Furthermore, there is no evidence to suggest that legislatures are inclined to ignore or subvert the Fourth Amendment. There is also no indication that the exclusion of evidence seized pursuant to a statute subsequently declared unconstitutional would have a significant deterrent effect on the enactment of similar laws. Legislators Page 480 U. S. 341 enact statutes for broad programmatic purposes, not for the purpose of procuring evidence in particular cases. The greatest deterrent to unconstitutional enactments is the courts' power to invalidate such statutes. Even if the exclusionary rule provided some incremental deterrent, its benefit would be outweighed by the substantial social costs exacted by the rule. Pp. 480 U. S. 350-353.(c) The contention that the application of the exclusionary rule is required because large numbers of people are affected by a warrantless administrative search statute is not persuasive. Although the number of individuals affected may be considered in weighing the costs and benefits of applying the rule, the fact that many are affected will not require the rule's application if such application will not have a meaningful deterrent effect. P. 480 U. S. 353.(d) The contention that the exception to the exclusionary rule recognized here will discourage criminal defendants from presenting meritorious Fourth Amendment claims is also not persuasive. Defendants will always be able to argue in a suppression motion that the officer's reliance on the warrantless search statute was not objectively reasonable, and therefore was not in good faith. Furthermore, persons covered by a statute may bring an action seeking a declaration of the statute's unconstitutionality and an injunction barring its implementation. Pp. 480 U. S. 353-354.(e) Under the exception to the exclusionary rule recognized here, a statute cannot support objectively reasonable reliance if, in passing it, the legislature wholly abandoned its responsibility to enact constitutional laws, or if the statutory provisions are such that a reasonable law enforcement officer should have known that the statute was unconstitutional. P. 480 U. S. 355.2. The detective's reliance on the Illinois statute was objectively reasonable. Even assuming that the statute was unconstitutional because it vested state officials with too much discretion, this constitutional defect would not have been obvious to a police officer acting in good faith. Pp. 480 U. S. 356-360.107 Ill. 2d 107, 481 N.E.2d 703, reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, POWELL, and SCALIA, JJ., joined. MARSHALL, J., filed a dissenting opinion, post, p. 480 U. S. 361. O'CONNOR, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 480 U. S. 361. Page 480 U. S. 342 |
331 | 1979_79-48 | MR. JUSTICE STEWART delivered the opinion of the Court.The Buy Indian Act, 35 Stat. 71, as amended, 25 U.S.C. § 47 directs the Secretary of the Interior to employ Indian labor "[s]o far as may be practicable," and permits him to purchase "the products of Indian industry . . . in open market." [Footnote 1] The question presented in this case is whether the Bureau of Indian Affairs (BIA) of the Department of the Interior [Footnote 2] may, on the authority of this legislation, enter into road construction contracts with Indian-owned companies without first advertising for bids pursuant to Title III of the Federal Property and Administrative Services Act of 1949 (FPASA), 63 Stat. 393, as amended, 41 U.S.C. §§ 251-260.IIn 1976, the BIA formally adopted the procurement policy that "all [BIA] purchases or contracts be made or entered into with qualified Indian contractors to the maximum practicable extent." [Footnote 3] To effectuate this objective, the BIA announced that, in every procurement situation, it would consider dealing with non-Indian contractors only after it had determined that there were "no qualified Indian contractors within the normal competitive area that can fill or are interested in filling the procurement requirement." [Footnote 4] Page 446 U. S. 610In early 1977, the BIA invited three Indian-owned construction companies to submit bids for the repair and improvement of a 5-mile segment of road in Pushmataha County, Okla. The road, commonly called the Honobia Road, is located within an area subject to BIA jurisdiction. The respondent, a non-Indian corporation engaged as a general contractor in roadbuilding and other forms of heavy construction, was not afforded an opportunity to bid. [Footnote 5] On May 25, 1977, BIA awarded the contract to Indian Nations Construction Co., a corporation owned and controlled exclusively by Indians and the only Indian-owned company to have bid on the project. The final negotiated contract price amounted to approximately $1.2 million. [Footnote 6]The respondent then filed the present suit in the United States District Court for the Eastern District of Oklahoma, naming as defendants the Secretary of the Interior, the Department of the Interior, BIA, and the BIA contracting officer on the Honobia Road project (petitioners here). The respondent alleged that the petitioners were required by § 3709 of the Revised Statutes, 41 U.S.C. § 5, and Title III of the FPASA to advertise publicly for bids on the Honobia Road project. The respondent further claimed that the actions of the petitioners had denied it due process and equal protection in contravention of the Fifth Amendment of the United States Constitution. As relief, the respondent requested Page 446 U. S. 611 the District Court to set aside the Honobia Road contract and to enjoin the petitioners from engaging in the unadvertised negotiation of contracts on the purported authority of the Buy Indian Act.After the completion of discovery, the District Court granted summary judgment to the respondent. 451 F. Supp. 1102. The court concluded that the procedure followed by the petitioners in awarding the Honobia Road project to the Indian Nations Construction Co. violated the advertising requirements of the FPASA, in particular 41 U.S.C. §§ 252(e) and 253. 451 F. Supp. at 1106. The court rejected the Secretary's contrary administrative construction as inconsistent with the plain language of the FPASA. Id. at 1106-1108. Deciding in favor of the respondent on these statutory grounds, the District Court found it unnecessary to reach the respondent's alternative arguments under the Constitution. Id. at 1108. The court thereupon declared the road construction contract that had been entered into between the petitioners and the Indian Nations Construction Co. to be null and void, and permanently enjoined the petitioners from circumventing the advertising requirements of 41 U.S.C. § 253 in connection with the remainder of the Honobia Road project and future road construction projects. 451 F. Supp. at 1112. [Footnote 7]A divided panel of the Court of Appeals for the Tenth Circuit affirmed the judgment. 591 F.2d 554. Relying in large part on the analysis of the District Court, the Court of Appeals held that, whatever might arguably be the breadth of the Buy Indian Act standing alone, it had been preempted by the advertising requirements of the FPASA with respect Page 446 U. S. 612 to the procurement of road construction projects. Id. at 557-559. Alternatively, the Court of Appeals observed that it would"require a considerable 'stretch of the imagination' to conclude that the Congress intended the Buy-Indian Act to apply to road construction projects."Id. at 560. The appellate court believed, in short, that the Act's preference for Indian "products" could not easily be read to include the performance of a roadway construction contract by an Indian-owned firm. Id. at 562. In response to the petitioners' contention that the Buy Indian Act should be construed liberally to effectuate its remedial purpose, the court observed that"a primary, significant remedial feature of the advertisement and competitive bidding requirements of the [FPASA] is to obtain the best and lowest bid for the benefit of the American taxpayers in 'high cost' construction categories."Ibid. (emphasis deleted). We granted certiorari, 444 U.S. 962, to decide a question of importance in the proper exercise by the BIA of its procurement responsibilities.IIThe Buy Indian Act was enacted in 1910 as part of legislation that subjected the purchase of Indian supplies by the Department of the Interior to the strictures of § 3709 of the Revised Statutes. [Footnote 8] Section 3709, which had been in existence Page 446 U. S. 613 since 1861, [Footnote 9] required agencies subject to its provisions to advertise for bids on all but a few Government procurements. [Footnote 10] The purpose of the Buy Indian Act was clear. Purchases by the Department of the Interior of "the products of Indian industry" were to be exempt from any requirement of advertising for bids imposed by § 3709 of the Revised Statutes. [Footnote 11]The legislation of which the Buy Indian Act was a part was amended from time to time between 1910 and 1965, but none of these changes affected the substance of what had been enacted in 1910. The BIA, as was true of most other departments of the Government, continued to operate under a general mandate that contracts for supplies and services be let in conformity with § 3709 of the Revised Statutes. [Footnote 12] Section Page 446 U. S. 614 3709, in turn, was recodified (41 U.S.C. § 5) and amended, but its basic mandate remained the same. [Footnote 13] Government procurement was to proceed through advertising for bids unless excepted by § 3709 or "otherwise provided" by laws such as the Buy Indian Act. [Footnote 14]In 1965, the law affecting BIA procurement was substantially modified. The regime of detailed contracting requirements contained in Title III of the FPASA, theretofore applicable only to the General Services Administration and to certain special procurements, [Footnote 15] was extended to cover the purchasing procedures of the BIA and most other executive Page 446 U. S. 615 agencies. [Footnote 16] See 41 U.S.C. § 252(a); 40 U.S.C. §§ 472(a), 474. For covered agencies, one consequence of this legislation was to substitute the advertising requirements set out in Title III of the FPASA for those contained in § 3709 of the Revised Statutes. See 41 U.S.C. § 260; S.Rep. No. 274, 89th Cong., 1st Sess., 1, 5 (1965); H.R.Rep. No. 1166, 89th Cong., 1st Sess., 7, 9 (1965); 111 Cong.Rec. 27198 (1965) (Rep. Brooks).Under Title III of the FPASA, the BIA must now adhere to the broad statutory mandate that "[a]ll purchases and contracts for property and services shall be made by advertising. . . ." 41 U.S.C. § 252(c). From this directive, the statute specifically excepts only 15 types of procurements, the 15th covering situations where negotiated procurements are "otherwise authorized by law. . . ." § 252(c)(15) (subsection(c)(15)).The Buy Indian Act is clearly a "law" within the contemplation of subsection (c)(15). As § 41 U.S.C. 260 expressly states:"Any provision of law which authorizes an executive agency . . . to procure any property or services without advertising or without regard to [§ 3709 of the Revised Statutes, 41 U.S.C. § 5] shall be construed to authorize the procurement of such property or services pursuant to section 252(c)(15) of this title without regard to the advertising requirements of . . . this title."See also S.Rep. No. 274, supra at 5; H.R.Rep. No. 1166, supra at 8. As noted above, the Buy Indian Act has, from its inception, authorized the BIA to "purchas[e] the products of Indian industry" without regard to the advertising requirements of § 3709 of the Revised Statutes.Relying on subsection (c)(15) and § 260, the petitioners argue that the BIA proceeded correctly in awarding the Honobia Road contract to the Indian Nations Construction Co. without prior public advertising for bids. They assert that Page 446 U. S. 616 a road constructed or repaired by an Indian-owned corporation is a "product of Indian industry" within the meaning of the Buy Indian Act and, accordingly, that the Honobia Road project was exempt from the FPASA's advertising rules by operation of subsection (c)(15).It is fairly debatable, we think, simply as a matter of language, whether a road constructed or repaired by an Indian-owned enterprise is a "product of Indian industry" within the meaning of the Buy Indian Act. But even if that Act could, in isolation, be construed to embrace road construction or repair, the petitioners' argument must still be rejected because of another provision of Title III of the FPASA expressly relating to contracts of the sort at issue here. Title 41 U.S.C. § 252(e) (subsection(e)) states that § 252(c)"shall not be construed to . . . permit any contract for the construction or repair of . . . roads . . . to be negotiated without advertising . . unless . . . negotiation of such contract is authorized by the provisions of paragraphs (1), (2), (3), (10), (11), (12), or (14) of subsection (c) of this section. [Footnote 17]"Not contained in this list of exceptions is subsection (c)(15). From this omission, only one inference can be drawn: Congress meant to bar the negotiation of road construction and repair projects under the authority of laws like the Buy Indian Act. Where Congress explicitly enumerates certain exceptions to a Page 446 U. S. 617 general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent. See Continental Casualty Co. v. United States, 314 U. S. 527, 314 U. S. 533. [Footnote 18]In an attempt to avoid the obvious import of subsection (e), the petitioners argue that the subsection does not apply at all to cases in which the Buy Indian Act is involved. The petitioners reason that subsection (e) is concerned solely with procurement contracts whose negotiation is "permitted" by § 252, and that the negotiation authority afforded by the Buy Indian Act does not fit this description, because that Act is a statute which, of its own force, operates independently of the FPASA.We read the pertinent statutes differently. In the absence of subsection (c)(15), the Buy Indian Act could independently confer no authority on the BIA to avoid public advertising for competitive bids. Title 40 U.S.C. § 474 provides that"[t]he authority conferred by [the FPASA] shall be in addition and paramount to any authority conferred by any other law and shall not be subject to the provisions of any law inconsistent herewith. . . ."(Emphasis supplied.) In view of § 252's broad directive that all procurement proceed Page 446 U. S. 618 through advertising, the Buy Indian Act's contrary mandate would not have survived the 1965 amendments to the FPASA had Title III of the FPASA not contained subsection (c)(15). In short, § 252(c) "permits" negotiation pursuant to the Buy Indian Act and, therefore, such negotiation is limited by the special rule applicable to road construction contained in subsection (e). [Footnote 19]We are, nonetheless, urged to disregard the plain meaning of subsection (e) because of the axiom that repeals by implication of longstanding statutory provisions are not favored. See Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm'n, 393 U. S. 186, 393 U. S. 193. The maxim is said to be particularly compelling here because the older statute is "remedial" legislation for the benefit of Indians. See Morton v. Mancari, 417 U. S. 535, 417 U. S. 549-551. The 1965 amendments to the FPASA did not, however, "repeal" the Buy Indian Act. With the exception of the limited class of contracts enumerated in subsection (e), the FPASA did not in any manner displace the provisions of the Buy Indian Act. Moreover,"[t]he courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of coexistence, it is the duty of the courts, absent a Page 446 U. S. 619 clearly expressed congressional intention to the contrary, to regard each as effective."Morton v. Mancari, supra at 417 U. S. 551. And, although the "rule by which legal ambiguities are resolved to the benefit of the Indians" is to be given "the broadest possible scope," "[a] canon of construction is not a license to disregard clear expressions of . . . congressional intent." DeCoteau v. District County Court, 420 U. S. 425, 420 U. S. 447.For the reasons stated, the judgment of the Court of Appeals is affirmed. [Footnote 20]It is so ordered | U.S. Supreme CourtAndrus v. Glover Construction Co., 446 U.S. 608 (1980)Andrus v. Glover Construction Co.No. 79-48Argued March 24, 1980Decided May 27, 1980446 U.S. 608SyllabusHeld: The Buy Indian Act, which permits the Secretary of the Interior to purchase "the products of Indian industry . . . in open market," does not authorize the Department of the Interior's Bureau of Indian Affairs (BIA) to enter into road construction contracts with Indian-owned companies without first advertising for bids pursuant to Title III of the Federal Property and Administrative Services Act of 1949 (FPASA). There is no such authority even if the Buy Indian Act's language "the products of Indian industry" could be construed to embrace road construction, since, while negotiated procurements "otherwise authorized by law" are one of the specified exceptions to Title III's broad directive in 41 U.S.C. § 252(c) that all procurement by the covered executive agencies (including the BIA) proceed through advertising, such exception is omitted from the list of the exceptions specified in § 252(e) to the requirement that § 252(c) not be construed to permit any road construction contract to be negotiated without advertising. From this omission, only one inference can be drawn: Congress meant to bar the negotiation of road construction projects under the authority of laws like the Buy Indian Act. Pp. 446 U. S. 612-619.591 F.2d 554, affirmed.STEWART, J., delivered the opinion for a unanimous Court. Page 446 U. S. 609 |
332 | 1958_276 | MR. JUSTICE WHITTAKER delivered the opinion of the Court.The question presented by this case is whether the provisions of § 4(5) of the Carriage of Goods by Sea Act (46 U.S.C. § 1304(5)) or the parallel provisions of an ocean bill of lading, limiting the liability of an ocean "carrier" to a shipper to $500 per package of cargo, also apply to and likewise limit the liability of a negligent stevedore.Respondents, having sold and agreed to deliver certain goods to a Spanish company, arranged for their ocean carriage on the S.S. Castillo Ampudia from Baltimore, Maryland, to Valencia, Spain. The goods, consisting of 62 cases, were transported from Detroit by flatcar to a point on the Baltimore pier alongside the S.S. Castillo Ampudia, and were there taken in charge by her agent for loading and shipment. A bill of lading was prepared by respondents, on forms of the carrier, and was submitted to and signed by an agent of the carrier. The value of the goods was not declared by respondents or inserted in the bill of lading.Petitioner, an independent stevedoring company, was orally engaged by the carrier to load the cargo aboard the ship, and, while endeavoring to load one of the cases, containing a press weighing 19 tons, petitioner's employees caused it to fall into the harbor and to be extensively damaged. Respondents then brought this tort action in the United States District Court against petitioner to recover their damages which they alleged had been caused by petitioner's negligence. Petitioner's answer denied the allegations of negligence, and asserted, alternatively, that if the damage was caused by its negligence, its liability was limited to $500 by the limitation of liability provisions of the Carriage of Goods Page 359 U. S. 299 by Sea Act [Footnote 1] and by the parallel provisions of the bill of lading. [Footnote 2]After trial, the District Court held that the damage to the press was caused by petitioner's negligence; that the limitation of liability provisions of the bill of lading were, in express terms, applicable only to the carrier, and did not apply to nor limit the liability of the stevedore; [Footnote 3] and that Page 359 U. S. 300 respondents were entitled to recover the full amount of their damages from petitioner (145 F.Supp. 554). It accordingly rendered judgment for respondents in the amount of $47,992.04 (155 F.Supp. 296). On appeal, the Court of Appeals unanimously affirmed on the question here presented. 256 F.2d 946. It held that neither the limitation of liability provisions of the Carriage of Goods by Sea Act [Footnote 4] (Note 1) nor of the bill of lading (Note 2) were applicable to, or limited the liability of, the stevedoring company, and that it was therefore liable for the full damage caused by its negligence. The court expressly disagreed with and declined to follow the majority opinion of the Fifth Circuit in A. M. Collins & Co. v. Panama R. Co., 197 F.2d 893, saying that it thought the dissenting opinion in that case presented the correct view. The question being of importance to the shipping industry, we granted certiorari to resolve this conflict. 358 U.S. 812.Petitioner's contentions are twofold. First, it contends that the liability-limiting provisions of the Carriage of Goods by Sea Act and of the bill of lading should be construed to limit its liability as well as that of the carrier. Second, it contends that, even if it be held that those provisions limit only the liability of the "carrier," it is nevertheless protected by the carrier's limitation under the theory and holding of the majority opinion in the Collins case. Page 359 U. S. 301With regard to petitioner's first contention, we look first to the provisions, legislative history, and environment of the Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300-1315, and next to the limiting provisions of the bill of lading, to determine whether Congress by the Act, or the shippers and the carrier by the bill of lading, evidenced any intention to limit the liability of negligent agents of a carrier.The Act is clearly phrased. It defines the term "carrier" to include "the owner or the charterer who enters into a contract of carriage with the shipper." § 1301(a). It imposes particularized duties and obligations upon, and grants stated immunities to, the "carrier." §§ 1302, 1303, 1304. Respecting limitation of the amount of liability for loss of or damage to goods, it says that "neither the carrier nor the ship" shall be liable for more than $500 per package. § 1304(5). It makes no reference whatever to stevedores or agents. The legislative history of the Act shows that it was lifted almost bodily from the Hague Rules of 1921, as amended by the Brussels Convention of 1924, 51 Stat. 233. [Footnote 5] The effort of those Rules was to establish uniform ocean bills of lading to govern the rights and liabilities of carriers and shippers inter se in international trade. Ibid. Those Rules do not advert to stevedores or agents of a carrier. The debates and Committee Reports in the Senate and the House upon the bill that became the Carriage of Goods by Sea Act likewise do not mention stevedores or agents. [Footnote 6] There is, thus, nothing in the language, the legislative history Page 359 U. S. 302 or environment of the Act that expressly or impliedly indicates any intention of Congress to regulate stevedores or other agents of a carrier, or to limit the amount of their liability for damages caused by their negligence. It must be assumed that Congress knew that generally agents are liable for all damages caused by their negligence. Yet Congress, while limiting the amount of liability of "the carrier [and] the ship," did not even refer to stevedores or agents of a carrier."We can only conclude that if Congress had intended to make such an inroad on the rights of claimants [against negligent agents], it would have said so in unambiguous terms,"and, "in the absence of a clear Congressional policy to that end, we cannot go so far." Brady v. Roosevelt S.S. Co., 317 U. S. 575, 317 U. S. 581, 317 U. S. 584.We therefore conclude that there is nothing in the provisions, legislative history, and environment of the Act, or in the limitation of liability provisions of the bill of lading, to indicate any intention, of Congress by the Act Page 359 U. S. 303 or of the contracting parties by the bill of lading, to limit the liability of negligent agents of the carrier.We now turn to petitioner's second contention -- that, even if, as we hold, the Act and the bill of lading granted limitation of liability only to the "carrier," petitioner is nevertheless protected by the carrier's limitation under the theory and holding of the majority opinion in the Collins case. The premise of the majority opinion in that case is that all agents of the carrier who perform any part of the work undertaken by the carrier in the contract of carriage evidenced by the bill of lading are, by reason of that fact alone, protected by the provisions of the contract limiting the liability of the carrier, though such agents are not parties to nor express beneficiaries of the contract. Applying that theory in accordingly limiting the liability of a negligent stevedore, the majority said:"A stevedore so unloading, in every practical sense, does so by virtue of the bill of lading, and, though not strictly speaking a party thereto, is, while liable as an agent for its own negligence at the same time entitled to claim the limitation of liability provided by the bill of lading to the furtherance of the terms of which its operations are directed."197 F.2d at 896.We are unable to agree with that conclusion, for we think it runs counter to a long-settled line of decisions of this Court. From its early history, this Court has consistently held that an agent is liable for all damages caused by his negligence unless exonerated therefrom in whole or in part by a statute or a valid contract binding on the person damaged. In Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 843, it was said that an agent "is responsible for his own act to the full extent of the injury [caused thereby]." In Reid v. Fargo, 241 U. S. 544, this Court held, on facts very similar to those Page 359 U. S. 304 here, that, though the carrier's liability was limited by the bill of lading to $100, the negligent agent, a stevedoring company, was liable to the shipper for the full amount of damage caused by its negligence. [Footnote 7] In Sloan Shipyards Corporation v. Emergency Fleet Corporation, 258 U.S. at 258 U. S. 567, it was said that an "agent, because he is agent, does not cease to be answerable for his acts." In Brady v. Roosevelt S.S. Co., 317 U.S. at 317 U. S. 580-581, this Court said that "[t]he liability of an agent for his own negligence has long been imbedded in the law," that "withdrawal of the right to sue the agent for his torts would result at times in a substantial dilution of the rights of claimants," and that withdrawal of that right would be "such a basic change in one of the fundamentals of the law of agency [as] should hardly be left to conjecture." This Court has several times held that an agent's only shield from liability "for conduct harmful to the plaintiff . . . is a constitutional rule of law that exonerates him." Sloan Shipyards Corporation v. Emergency Fleet Corporation, 258 U.S. at 258 U. S. 567; Brady v. Roosevelt S.S. Co., 317 U.S. at 317 U. S. 584. Any such rule of law, being in derogation of the common law, must be strictly construed, for"[n]o statute is to be construed as altering the common law farther than its words import. It is not to be construed as making any innovation Page 359 U. S. 305 upon the common law which it does not fairly express."Shaw v. Railroad Co., 101 U. S. 557, 101 U. S. 565; see Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 204 U. S. 437. Similarly, contracts purporting to grant immunity from, or limitation of, liability must be strictly construed and limited to intended beneficiaries, for they"are not to be applied to alter familiar rules visiting liability upon a tortfeasor for the consequences of his negligence, unless the clarity of the language used expresses such to be the understanding of the contracting parties."Boston Metals Co. v. The Winding Gulf, 349 U. S. 122, 349 U. S. 123-124 (concurring opinion).The holding of the majority in Collins that the liability of a negligent agent of a carrier, though not limited by any statute or contract, is nevertheless limited by and to the extent of the limitation granted by the shipper to the carrier in the bill of lading, simply because the agent is performing some part of the work thereby undertaken by the carrier, is clearly contrary to the above-cited decisions of this Court. [Footnote 8] Page 359 U. S. 306Petitioner claims that its position is supported by the decision of the House of Lords in Elder, Dempster & Co., Ltd. v. Paterson, Zochonis & Co., Ltd., (1924) A.C. 522, 18 Li.L.Rep. 319. There, Elder, Dempster & Co. had chartered a ship, on time charter, from the shipowners. The plaintiff company shipped a number of casks of palm oil by that ship from West African ports to England. The casks were crushed by other cargo negligently laid over them, and a large part of the oil was lost. The bill of lading contained a clause which, so far as here pertinent, provided that "The shipowners . . . shall not be liable . . . for . . . any damage arising from . . . stowage. . . ." The plaintiff company sued both the charterer Page 359 U. S. 307 and the shipowners. The principal question was whether the damage was caused by unseaworthiness (which was not within the exemption clause) or by bad stowage (which was within that clause). The House of Lords decided that the loss was due to bad stowage, and held, but for differing reasons, that the exemption clause applied to and protected both the charterer and the shipowners.A careful reading of the several lengthy opinions of their lordships in that case discloses that the question whether a provision in the bill of lading limiting the liability of the carrier likewise limits the liability of its negligent agent, though the agent is neither a party to nor an express beneficiary of the bill of lading, was not involved in or decided by that case. Nor has any English case ever held that a bill of lading that expressly limits the liability of only the carrier nevertheless applies to and limits the liability of its negligent agent. See Scrutton, Charterparties (16th ed. 1955), 286-287, note (g). It is true that, in Gilbert Stokes & Kerr, Prop., Ltd. v. Dalgety & Co., Ltd., 81 Ll.L.Rep. 337 (1948), and Waters Trading Co., Ltd. v. Dalgety & Co., Ltd., [1951] 2 Ll.L.Rep. 385, the Supreme Court of New South Wales held that stevedores, who negligently performed a part of the work undertaken by the carrier in the bill of lading were entitled to the limitation of liability given to the carrier by the limiting provisions of the bill of lading, though the stevedores were neither parties to nor express beneficiaries of the bill of lading. However, in Wilson v. Darling Island Stevedoring & Lighterage Co. Ltd., [1956] 1 Ll.L.Rep. 346, [1956] Argus Law Rep. 311, 29 Austral.L.J. 740 -- an appeal involving facts indistinguishable from those involved in the two New South Wales cases, which was prosecuted for the avowed purpose of challenging the correctness of those decisions -- the High Court of Australia, after extensively reviewing the Elder, Dempster Page 359 U. S. 308 case and many other English decisions, found that there was no English case that supported the two New South Wales decisions mentioned, and it held that they were wrongly decided, and overruled them, saying:"The stevedore is a complete stranger to the contract of carriage, and it is no concern of his whether there is a bill of lading or not, or, if there is, what are its terms. He is engaged by the shipowner, and by nobody else, and the terms on which he handles the goods are to be found in his contract with the shipowner, and nowhere else. The shipowner has no authority whatever to bind the shipper or consignee of cargo by contract with the stevedore, and there is, in my opinion, no principle of law -- deducible from the Elder Dempster case or from any other case -- which compels the inference of any contract between the shipper or consignee and the stevedore. If the stevedore negligently soaks cargo with water and ruins it, I can find neither rule of law nor contract to save him from the normal consequences of his tort."Opinion of Fullager, J., 29 Austral.L.J. at 751.Under the common law as declared by this Court, petitioner was liable for all damages caused by its negligence unless exonerated therefrom, in whole or in part, by a constitutional rule of law. No statute has limited its liability, and it was not a party to nor a beneficiary of the contract of carriage between the shipper and the carrier, and hence its liability was not limited by that contract. It follows that petitioner's common law liability for damages caused by its negligence was in no way limited, and the judgment below so holding was correct, and must be affirmed.Affirmed | U.S. Supreme CourtHerd & Co. v. Krawill Machinery Corp., 359 U.S. 297 (1959)Robert C. Herd & Co. v. Krawill Machinery Corp.No. 276Argued February 26, 1959Decided April 20, 1959359 U.S. 297SyllabusNeither the provisions of § 4(5) of the Carriage of Goods by Sea Act nor the parallel provisions of an ocean bill of lading, limiting the liability of an ocean "carrier" to a shipper to $500 per package of cargo, apply to, or limit the liability of, a negligent stevedore employed by the carrier to load cargo on its vessel. Pp. 359 U. S. 298-308.(a) Nothing in the provisions, legislative history, or environment of the Act, or in the limitation of liability provisions of the bill of lading, indicates any intention, of Congress by the Act, or of the contracting parties by the bill of lading, to limit the liability of negligent agents of the carrier. Pp. 359 U. S. 301-303.(b) The doctrine of A. M. Collins & Co. v. Panama R. Co., 197 F.2d 893, is disapproved as being contrary to decisions of this Court. Pp. 359 U. S. 303-305.(c) Elder, Dempster & Co., Ltd. v. Paterson, Zochonis & Co., Ltd., [1924] A. C. 522, distinguished. Pp. 359 U. S. 306-308.256 F.2d 946, affirmed. Page 359 U. S. 298 |
333 | 1996_96-842 | Syllabusthe information and harms members of the investing public, the misappropriation theory is tuned to an animating purpose of the Exchange Act: to ensure honest markets, thereby promoting investor confidence. It would make scant sense to hold a lawyer-turned-trader like O'Hagan a § 10(b) violator if he works for a law firm representing the target of a tender offer, but not if he works for a firm representing the bidder. The statute's text requires no such result. Pp. 653-659.(c) The Eighth Circuit erred in holding that the misappropriation theory is inconsistent with § 10(b). First, that court understood the theory to require neither misrepresentation nor nondisclosure; as this Court explains, however, deceptive nondisclosure is essential to § 10(b) liability under the theory. Concretely, it was O'Hagan's failure to disclose his personal trading to Grand Met and Dorsey, in breach of his duty to do so, that made his conduct "deceptive" under § 10(b). Second, the Eighth Circuit misread this Court's precedents when it ruled that, under Chiarella v. United States, 445 U. S. 222, 230, 232, 233; Dirks v. SEC, 463 U. S. 646, 655; and Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 191, only a breach of a duty to parties to a securities transaction, or, at the most, to other market participants such as investors, is sufficient to give rise to § lO(b) liability. Chiarella, 445 U. S., at 238, 239, 240-243, 245, expressly left open the question of the misappropriation theory's validity, and Dirks, 463 U. S., at 665, 666-667, also left room for application of the misappropriation theory in cases such as this one. Central Bank's discussion concerned only private civil litigation under § 10(b) and Rule 10b-5, not criminal liability. Pp. 660-665.(d) Vital to this Court's decision that criminal liability may be sustained under the misappropriation theory is the Exchange Act's requirement that the Government prove that a person "willfully" violated Rule lOb-5 in order to establish a criminal violation, and the Act's provision that a defendant may not be imprisoned for such a violation if he proves that he had no knowledge of the Rule. The requirement of culpable intent weakens O'Hagan's charge that the misappropriation theory is too indefinite to permit the imposition of criminal liability. See Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342. The Eighth Circuit may address on remand O'Hagan's other challenges to his § lO(b) and Rule 10b-5 convictions. Pp. 665-666.2. As relevant to this case, the SEC did not exceed its rulemaking authority under § 14(e) by adopting Rule 14e-3(a) without requiring a showing that the trading at issue entailed a breach of fiduciary duty. Section 14(e) prohibits "fraudulent ... acts ... in connection with any tender offer," and authorizes the SEC to "define, and prescribe means reasonably designed to prevent, such acts." Adopted under that statu-645tory authorization, Rule 14e-3(a) forbids any person to trade on the basis of material, nonpublic information that concerns a tender offer and that the person knows or should know has been acquired from an insider of the offeror or issuer, or someone working on their behalf, unless within a reasonable time before any purchase or sale such information and its source are publicly disclosed. Rule 14e-3(a) imposes a duty to disclose or abstain from trading whether or not the trader owes a fiduciary duty to respect the confidentiality of the information. In invalidating Rule 14e-3(a), the Eighth Circuit reasoned, inter alia, that § 14(e) empowers the SEC to identify and regulate "fraudulent" acts, but not to create its own definition of "fraud"; that, under Schreiber v. Burlington Northern, Inc., 472 U. S. 1,7-8, § lO(b) interpretations guide construction of § 14(e); and that, under Chiarella, supra, at 228, a failure to disclose information can be "fraudulent" for § 10(b) purposes only when there is a duty to speak arising out of a fiduciary or similar relationship of trust and confidence. This Court need not resolve whether the SEC's § 14(e) fraud-defining authority is broader than its like authority under § 10(b), for Rule 14e-3(a), as applied to cases of this genre, qualifies under § 14(e) as a "means reasonably designed to prevent" fraudulent trading on material, nonpublic information in the tender offer context. A prophylactic measure properly encompasses more than the core activity prohibited. Under § 14(e), the SEC may prohibit acts not themselves fraudulent under the common law or § 10(b), if the prohibition is reasonably designed to prevent acts and practices that are fraudulent. See Schreiber, supra, at 11, n. 11. This Court must accord the SEC's assessment in that regard controlling weight unless it is arbitrary, capricious, or manifestly contrary to the statute. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844. In this case, the SEC's assessment is none of these. It is a fair assumption that trading on the basis of material, nonpublic information will often involve a breach of a duty of confidentiality to the bidder or target company or their representatives. The SEC, cognizant of proof problems that could enable sophisticated traders to escape responsibility for such trading, placed in Rule 14e-3(a) a "disclose or abstain from trading" command that does not require specific proof of a breach of fiduciary duty. Insofar as it serves to prevent the type of misappropriation charged against O'Hagan, the Rule is therefore a proper exercise of the SEC's prophylactic power under § 14(e). This Court declines to consider in the first instance O'Hagan's alternate arguments that Rule 14e-3(a)'s prohibition of pre-offer trading conflicts with § 14(e) and violates due process. The Eighth Circuit may address on remand any such argument that O'Hagan has preserved. Pp. 666-677.6463. This Court's rulings on the securities fraud issues require reversal of the Eighth Circuit's judgment on the mail fraud counts. O'Hagan's other arguments attacking the mail fraud convictions on alternate grounds, which have not been addressed by the Eighth Circuit, remain open for consideration on remand. Pp. 677-678.92 F.3d 612, reversed and remanded.GINSBURG, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, SOUTER, and BREYER, JJ., joined, and in which SCALIA, J., joined as to Parts I, III, and IV. SCALIA, J., filed an opinion concurring in part and dissenting in part, post, p. 679. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., joined, post, p. 680.Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Acting Solicitor General Dellinger, Acting Assistant Attorney General Richard, Paul R. Q. Wolfson, Joseph C. Wyderko, Richard H. Walker, Paul Gonson, Jacob H. Stillman, Eric Summergrad, and Randall W Quinn.John D. French argued the cause for respondent. With him on the brief was Elizabeth L. Taylor. *JUSTICE GINSBURG delivered the opinion of the Court. This case concerns the interpretation and enforcement of § 10(b) and § 14(e) of the Securities Exchange Act of 1934, and rules made by the Securities and Exchange Commission pursuant to these provisions, Rule 10b-5 and Rule 14e-3(a).*Briefs of amici curiae urging reversal were filed for the American Institute of Certified Public Accountants by Louis A. Craco, Richard I. Miller, and David P. Murray; for the Association for Investment Management and Research by Stuart H. Singer; and for the North American Securities Administrators Association, Inc., et al. by Karen M. O'Brien, Meyer Eisenberg, Louis Loss, and Donald C. Langevoort.Briefs of amici curiae urging affirmance were filed for Law Professors and Counsel by Richard W Painter and Douglas W Dunham; and for the National Association of Criminal Defense Lawyers by Arthur F. Mathews, David M. Becker, Andrew B. Weissman, Robert F. Hoyt, Lisa Kemler, Milton V. Freeman, and Elkan Abramowitz.647Two prime questions are presented. The first relates to the misappropriation of material, nonpublic information for securities trading; the second concerns fraudulent practices in the tender offer setting. In particular, we address and resolve these issues: (1) Is a person who trades in securities for personal profit, using confidential information misappropriated in breach of a fiduciary duty to the source of the information, guilty of violating § 10(b) and Rule 10b-5? (2) Did the Commission exceed its rulemaking authority by adopting Rule 14e-3(a), which proscribes trading on undisclosed information in the tender offer setting, even in the absence of a duty to disclose? Our answer to the first question is yes, and to the second question, viewed in the context of this case, no.IRespondent James Herman O'Hagan was a partner in the law firm of Dorsey & Whitney in Minneapolis, Minnesota. In July 1988, Grand Metropolitan PLC (Grand Met), a company based in London, England, retained Dorsey & Whitney as local counsel to represent Grand Met regarding a potential tender offer for the common stock of the Pillsbury Company, headquartered in Minneapolis. Both Grand Met and Dorsey & Whitney took precautions to protect the confidentiality of Grand Met's tender offer plans. O'Hagan did no work on the Grand Met representation. Dorsey & Whitney withdrew from representing Grand Met on September 9, 1988. Less than a month later, on October 4, 1988, Grand Met publicly announced its tender offer for Pillsbury stock.On August 18, 1988, while Dorsey & Whitney was still representing Grand Met, O'Hagan began purchasing call options for Pillsbury stock. Each option gave him the right to purchase 100 shares of Pillsbury stock by a specified date in September 1988. Later in August and in September, O'Hagan made additional purchases of Pillsbury call options. By the end of September, he owned 2,500 unexpired Pillsbury options, apparently more than any other individual in-648vestor. See App. 85, 148. O'Hagan also purchased, in September 1988, some 5,000 shares of Pillsbury common stock, at a price just under $39 per share. When Grand Met announced its tender offer in October, the price of Pillsbury stock rose to nearly $60 per share. O'Hagan then sold his Pillsbury call options and common stock, making a profit of more than $4.3 million.The Securities and Exchange Commission (SEC or Commission) initiated an investigation into O'Hagan's transactions, culminating in a 57-count indictment. The indictment alleged that O'Hagan defrauded his law firm and its client, Grand Met, by using for his own trading purposes material, nonpublic information regarding Grand Met's planned tender offer. Id., at 8.1 According to the indictment, O'Hagan used the profits he gained through this trading to conceal his previous embezzlement and conversion of unrelated client trust funds. Id., at 10.2 O'Hagan was charged with 20 counts of mail fraud, in violation of 18 U. S. C. § 1341; 17 counts of securities fraud, in violation of § 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 48 Stat. 891, 15 U. S. C. § 78j(b), and SEC Rule 10b-5, 17 CFR § 240.10b-51 As evidence that O'Hagan traded on the basis of nonpublic information misappropriated from his law firm, the Government relied on a conversation between O'Hagan and the Dorsey & Whitney partner heading the firm's Grand Met representation. That conversation allegedly took place shortly before August 26, 1988. See Brief for United States 4. O'Hagan urges that the Government's evidence does not show he traded on the basis of nonpublic information. O'Hagan points to news reports on August 18 and 22, 1988, that Grand Met was interested in acquiring Pillsbury, and to an earlier, August 12, 1988, news report that Grand Met had put up its hotel chain for auction to raise funds for an acquisition. See Brief for Respondent 4 (citing App. 73-74, 78-80). O'Hagan's challenge to the sufficiency of the evidence remains open for consideration on remand.2 O'Hagan was convicted of theft in state court, sentenced to 30 months' imprisonment, and fined. See State v. O'Hagan, 474 N. W. 2d 613, 615, 623 (Minn. App. 1991). The Supreme Court of Minnesota disbarred O'Hagan from the practice of law. See In re O'Hagan, 450 N. W. 2d 571 (1990).649(1996); 17 counts of fraudulent trading in connection with a tender offer, in violation of § 14(e) of the Exchange Act, 15 U. S. C. § 78n(e), and SEC Rule 14e-3(a), 17 CFR § 240.14e3(a) (1996); and 3 counts of violating federal money laundering statutes, 18 U. S. C. §§ 1956(a)(1)(B)(i), 1957. See App. 13-24. A jury convicted O'Hagan on all 57 counts, and he was sentenced to a 41-month term of imprisonment.A divided panel of the Court of Appeals for the Eighth Circuit reversed all of O'Hagan's convictions. 92 F.3d 612 (1996). Liability under § 10(b) and Rule 10b-5, the Eighth Circuit held, may not be grounded on the "misappropriation theory" of securities fraud on which the prosecution relied. Id., at 622. The Court of Appeals also held that Rule 14e3(a)-which prohibits trading while in possession of material, nonpublic information relating to a tender offer-exceeds the SEC's § 14(e) rulemaking authority because the Rule contains no breach of fiduciary duty requirement. Id., at 627. The Eighth Circuit further concluded that O'Hagan's mail fraud and money laundering convictions rested on violations of the securities laws, and therefore could not stand once the securities fraud convictions were reversed. Id., at 627-628. Judge Fagg, dissenting, stated that he would recognize and enforce the misappropriation theory, and would hold that the SEC did not exceed its rulemaking authority when it adopted Rule 14e-3(a) without requiring proof of a breach of fiduciary duty. Id., at 628.Decisions of the Courts of Appeals are in conflict on the propriety of the misappropriation theory under § 10(b) and Rule 10b-5, see infra this page and 650, and n. 3, and on the legitimacy of Rule 14e-3(a) under § 14(e), see infra, at 669670. We granted certiorari, 519 U. S. 1087 (1997), and now reverse the Eighth Circuit's judgment.IIWe address first the Court of Appeals' reversal of O'Hagan's convictions under § 10(b) and Rule 10b-5. Following650the Fourth Circuit's lead, see United States v. Bryan, 58 F. 3d 933, 943-959 (1995), the Eighth Circuit rejected the misappropriation theory as a basis for § 10(b) liability. We hold, in accord with several other Courts of Appeals,3 that criminal liability under § 10(b) may be predicated on the misappropriation theory.4AIn pertinent part, § 10(b) of the Exchange Act provides:"It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange-"(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [Securities and Exchange] Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U. S. C. § 78j(b).3 See, e. g., United States v. Chestman, 947 F.2d 551, 566 (CA2 1991) (en bane), cert. denied, 503 U. S. 1004 (1992); SEC v. Cherif, 933 F.2d 403, 410 (CA7 1991), cert. denied, 502 U. S. 1071 (1992); SEC v. Clark, 915 F.2d 439, 453 (CA9 1990).4 Twice before we have been presented with the question whether criminal liability for violation of § 10(b) may be based on a misappropriation theory. In Chiarella v. United States, 445 U. S. 222, 235-237 (1980), the jury had received no misappropriation theory instructions, so we declined to address the question. See infra, at 661. In Carpenter v. United States, 484 U. S. 19, 24 (1987), the Court divided evenly on whether, under the circumstances of that case, convictions resting on the misappropriation theory should be affirmed. See Aldave, The Misappropriation Theory:Carpenter and Its Mtermath, 49 Ohio St. L. J. 373, 375 (1988) (observing that "Carpenter was, by any reckoning, an unusual case," for the information there misappropriated belonged not to a company preparing to engage in securities transactions, e. g., a bidder in a corporate acquisition, but to the Wall Street Journal).651The statute thus proscribes (1) using any deceptive device (2) in connection with the purchase or sale of securities, in contravention of rules prescribed by the Commission. The provision, as written, does not confine its coverage to deception of a purchaser or seller of securities, see United States v. Newman, 664 F.2d 12, 17 (CA2 1981); rather, the statute reaches any deceptive device used "in connection with the purchase or sale of any security."Pursuant to its § 10(b) rulemaking authority, the Commission has adopted Rule 10b-5, which, as relevant here, provides:"It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,"(a) To employ any device, scheme, or artifice to defraud, [or]"(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,"in connection with the purchase or sale of any security." 17 CFR § 240.10b-5 (1996).Liability under Rule 10b-5, our precedent indicates, does not extend beyond conduct encompassed by § 10(b)'s prohibition. See Ernst & Ernst v. Hochfelder, 425 U. S. 185, 214 (1976) (scope of Rule 10b-5 cannot exceed power Congress granted Commission under § 10(b)); see also Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 173 (1994) ("We have refused to allow [private] 10b-5 challenges to conduct not prohibited by the text of the statute.").Under the "traditional" or "classical theory" of insider trading liability, § 10(b) and Rule 10b-5 are violated when a corporate insider trades in the securities of his corporation652on the basis of material, nonpublic information. Trading on such information qualifies as a "deceptive device" under § 10(b), we have affirmed, because "a relationship of trust and confidence [exists] between the shareholders of a corporation and those insiders who have obtained confidential information by reason of their position with that corporation." Chiarella v. United States, 445 U. S. 222, 228 (1980). That relationship, we recognized, "gives rise to a duty to disclose [or to abstain from trading] because of the 'necessity of preventing a corporate insider from ... tak[ing] unfair advantage of ... uninformed ... stockholders.'" Id., at 228-229 (citation omitted). The classical theory applies not only to officers, directors, and other permanent insiders of a corporation, but also to attorneys, accountants, consultants, and others who temporarily become fiduciaries of a corporation. See Dirks v. SEC, 463 U. S. 646, 655, n. 14 (1983).The "misappropriation theory" holds that a person commits fraud "in connection with" a securities transaction, and thereby violates § 10(b) and Rule 10b-5, when he misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information. See Brief for United States 14. Under this theory, a fiduciary's undisclosed, self-serving use of a principal's information to purchase or sell securities, in breach of a duty of loyalty and confidentiality, defrauds the principal of the exclusive use of that information. In lieu of premising liability on a fiduciary relationship between company insider and purchaser or seller of the company's stock, the misappropriation theory premises liability on a fiduciary-turned-trader's deception of those who entrusted him with access to confidential information.The two theories are complementary, each addressing efforts to capitalize on nonpublic information through the purchase or sale of securities. The classical theory targets a corporate insider's breach of duty to shareholders with whom the insider transacts; the misappropriation theory outlaws653trading on the basis of nonpublic information by a corporate "outsider" in breach of a duty owed not to a trading party, but to the source of the information. The misappropriation theory is thus designed to "protec[t] the integrity of the securities markets against abuses by 'outsiders' to a corporation who have access to confidential information that will affect thee] corporation's security price when revealed, but who owe no fiduciary or other duty to that corporation's shareholders." Ibid.In this case, the indictment alleged that O'Hagan, in breach of a duty of trust and confidence he owed to his law firm, Dorsey & Whitney, and to its client, Grand Met, traded on the basis of nonpublic information regarding Grand Met's planned tender offer for Pillsbury common stock. App. 16. This conduct, the Government charged, constituted a fraudulent device in connection with the purchase and sale of securities.5BWe agree with the Government that misappropriation, as just defined, satisfies § 10(b)'s requirement that chargeable conduct involve a "deceptive device or contrivance" used "in connection with" the purchase or sale of securities. We observe, first, that misappropriators, as the Government describes them, deal in deception. A fiduciary who "[pretends] loyalty to the principal while secretly converting the principal's information for personal gain," Brief for United States5 The Government could not have prosecuted O'Hagan under the classical theory, for O'Hagan was not an "insider" of Pillsbury, the corporation in whose stock he traded. Although an "outsider" with respect to Pillsbury, O'Hagan had an intimate association with, and was found to have traded on confidential information from, Dorsey & Whitney, counsel to tender offeror Grand Met. Under the misappropriation theory, O'Hagan's securities trading does not escape Exchange Act sanction, as it would under JUSTICE THOMAS' dissenting view, simply because he was associated with, and gained nonpublic information from, the bidder, rather than the target.65417, "dupes" or defrauds the principal. See Aldave, Misappropriation: A General Theory of Liability for Trading on Nonpublic Information, 13 Hofstra L. Rev. 101, 119 (1984).We addressed fraud of the same species in Carpenter v.United States, 484 U. S. 19 (1987), which involved the mail fraud statute's proscription of "any scheme or artifice to defraud," 18 U. S. C. § 1341. Affirming convictions under that statute, we said in Carpenter that an employee's undertaking not to reveal his employer's confidential information "became a sham" when the employee provided the information to his co-conspirators in a scheme to obtain trading profits. 484 U. S., at 27. A company's confidential information, we recognized in Carpenter, qualifies as property to which the company has a right of exclusive use. Id., at 25-27. The undisclosed misappropriation of such information, in violation of a fiduciary duty, the Court said in Carpenter, constitutes fraud akin to embezzlement-" 'the fraudulent appropriation to one's own use of the money or goods entrusted to one's care by another.'" Id., at 27 (quoting Grin v. Shine, 187 U. S. 181,189 (1902)); see Aldave, 13 Hofstra L. Rev., at 119. Carpenter's discussion of the fraudulent misuse of confidential information, the Government notes, "is a particularly apt source of guidance here, because [the mail fraud statute] (like Section 10(b)) has long been held to require deception, not merely the breach of a fiduciary duty." Brief for United States 18, n. 9 (citation omitted).Deception through nondisclosure is central to the theory of liability for which the Government seeks recognition. As counsel for the Government stated in explanation of the theory at oral argument: "To satisfy the common law rule that a trustee may not use the property that [has] been entrusted [to] him, there would have to be consent. To satisfy the requirement of the Securities Act that there be no deception, there would only have to be disclosure." Tr. of Oral Arg. 12; see generally Restatement (Second) of Agency §§ 390, 395655(1958) (agent's disclosure obligation regarding use of confidential information).6The misappropriation theory advanced by the Government is consistent with Santa Fe Industries, Inc. v. Green, 430 U. S. 462 (1977), a decision underscoring that § 10(b) is not an all-purpose breach of fiduciary duty ban; rather, it trains on conduct involving manipulation or deception. See id., at 473-476. In contrast to the Government's allegations in this case, in Santa Fe Industries, all pertinent facts were disclosed by the persons charged with violating § 10(b) and Rule 10b-5, see id., at 474; therefore, there was no deception through nondisclosure to which liability under those provisions could attach, see id., at 476. Similarly, full disclosure forecloses liability under the misappropriation theory: Because the deception essential to the misappropriation theory involves feigning fidelity to the source of information, if the fiduciary discloses to the source that he plans to trade on the nonpublic information, there is no "deceptive device" and thus no § 10(b) violation-although the fiduciary-turnedtrader may remain liable under state law for breach of a duty of loyalty. 7We turn next to the § 10(b) requirement that the misappropriator's deceptive use of information be "in connection with6 Under the misappropriation theory urged in this case, the disclosure obligation runs to the source of the information, here, Dorsey & Whitney and Grand Met. Chief Justice Burger, dissenting in Chiarella, advanced a broader reading of § 10(b) and Rule 10b-5; the disclosure obligation, as he envisioned it, ran to those with whom the misappropriator trades. 445 U. S., at 240 ("a person who has misappropriated nonpublic information has an absolute duty to disclose that information or to refrain from trading"); see also id., at 243, n. 4. The Government does not propose that we adopt a misappropriation theory of that breadth.7Where, however, a person trading on the basis of material, nonpublic information owes a duty of loyalty and confidentiality to two entities or persons-for example, a law firm and its client-but makes disclosure to only one, the trader may still be liable under the misappropriation theory.656the purchase or sale of [a] security." This element is satisfied because the fiduciary's fraud is consummated, not when the fiduciary gains the confidential information, but when, without disclosure to his principal, he uses the information to purchase or sell securities. The securities transaction and the breach of duty thus coincide. This is so even though the person or entity defrauded is not the other party to the trade, but is, instead, the source of the nonpublic information. See Aldave, 13 Hofstra L. Rev., at 120 ("a fraud or deceit can be practiced on one person, with resultant harm to another person or group of persons"). A misappropriator who trades on the basis of material, nonpublic information, in short, gains his advantageous market position through deception; he deceives the source of the information and simultaneously harms members of the investing public. See id., at 120-121, and n. 107.The misappropriation theory targets information of a sort that misappropriators ordinarily capitalize upon to gain norisk profits through the purchase or sale of securities. Should a misappropriator put such information to other use, the statute's prohibition would not be implicated. The theory does not catch all conceivable forms of fraud involving confidential information; rather, it catches fraudulent means of capitalizing on such information through securities transactions.The Government notes another limitation on the forms of fraud § 10(b) reaches: "The misappropriation theory would not ... apply to a case in which a person defrauded a bank into giving him a loan or embezzled cash from another, and then used the proceeds of the misdeed to purchase securities." Brief for United States 24, n. 13. In such a case, the Government states, "the proceeds would have value to the malefactor apart from their use in a securities transaction, and the fraud would be complete as soon as the money was obtained." Ibid. In other words, money can buy, if not anything, then at least many things; its misappropriation657may thus be viewed as sufficiently detached from a subsequent securities transaction that § 10(b)'s "in connection with" requirement would not be met. Ibid.JUSTICE THOMAS' charge that the misappropriation theory is incoherent because information, like funds, can be put to multiple uses, see post, at 681-686 (opinion concurring in judgment in part and dissenting in part), misses the point. The Exchange Act was enacted in part "to insure the maintenance of fair and honest markets," 15 U. S. C. § 78b, and there is no question that fraudulent uses of confidential information fall within § 10(b)'s prohibition if the fraud is "in connection with" a securities transaction. It is hardly remarkable that a rule suitably applied to the fraudulent uses of certain kinds of information would be stretched beyond reason were it applied to the fraudulent use of money.JUSTICE THOMAS does catch the Government in overstatement. Observing that money can be used for all manner of purposes and purchases, the Government urges that confidential information of the kind at issue derives its value only from its utility in securities trading. See Brief for United States 10, 21; post, at 683-684 (several times emphasizing the word "only"). Substitute "ordinarily" for "only," and the Government is on the mark.s8JUSTICE THOMAS' evident struggle to invent other uses to which O'Hagan plausibly might have put the nonpublic information, see post, at 685, is telling. It is imaginative to suggest that a trade journal would have paid O'Hagan dollars in the millions to publish his information. See Tr. of Oral Arg. 36-37. Counsel for O'Hagan hypothesized, as a nontrading use, that O'Hagan could have "misappropriat[ed] this information of [his] law firm and its client, deliver[ed] it to [Pillsbury], and suggest[ed] that [Pillsbury] in the future ... might find it very desirable to use [O'Hagan] for legal work." Id., at 37. But Pillsbury might well have had large doubts about engaging for its legal work a lawyer who so stunningly displayed his readiness to betray a client's confidence. Nor is the Commission's theory "incoherent" or "inconsistent," post, at 680, 692, for failing to inhibit use of confidential information for "personal amusement ... in a fantasy stock trading game," post, at 685.658Our recognition that the Government's "only" is an overstatement has provoked the dissent to cry "new theory." See post, at 687-689. But the very case on which JUSTICE THOMAS relies, Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983), shows the extremity of that charge. In State Farm, we reviewed an agency's rescission of a rule under the same "arbitrary and capricious" standard by which the promulgation of a rule under the relevant statute was to be judged, see id., at 41-42; in our decision concluding that the agency had not adequately explained its regulatory action, see id., at 57, we cautioned that a "reviewing court should not attempt itself to make up for such deficiencies," id., at 43. Here, by contrast, Rule 10b-5's promulgation has not been challenged; we consider only the Government's charge that O'Hagan's alleged fraudulent conduct falls within the prohibitions of the Rule and § 10(b). In this context, we acknowledge simply that, in defending the Government's interpretation of the Rule and statute in this Court, the Government's lawyers have pressed a solid point too far, something lawyers, occasionally even judges, are wont to do.The misappropriation theory comports with § 10(b)'s language, which requires deception "in connection with the purchase or sale of any security," not deception of an identifiable purchaser or seller. The theory is also well tuned to an animating purpose of the Exchange Act: to insure honest securities markets and thereby promote investor confidence. See 45 Fed. Reg. 60412 (1980) (trading on misappropriated information "undermines the integrity of, and investor confidence in, the securities markets"). Although informational disparity is inevitable in the securities markets, investors likely would hesitate to venture their capital in a market where trading based on misappropriated nonpublic information is unchecked by law. An investor's informational disadvantage vis-a-vis a misappropriator with material, nonpublic in-659formation stems from contrivance, not luck; it is a disadvantage that cannot be overcome with research or skill. See Brudney, Insiders, Outsiders, and Informational Advantages Under the Federal Securities Laws, 93 Harv. L. Rev. 322, 356 (1979) ("If the market is thought to be systematically populated with ... transactors [trading on the basis of misappropriated information] some investors will refrain from dealing altogether, and others will incur costs to avoid dealing with such transactors or corruptly to overcome their unerodable informational advantages."); Aldave, 13 Hofstra L. Rev., at 122-123.In sum, considering the inhibiting impact on market participation of trading on misappropriated information, and the congressional purposes underlying § 10(b), it makes scant sense to hold a lawyer like O'Hagan a § 10(b) violator if he works for a law firm representing the target of a tender offer, but not if he works for a law firm representing the bidder. The text of the statute requires no such result.9 The misappropriation at issue here was properly made the subject of a § 10(b) charge because it meets the statutory requirement that there be "deceptive" conduct "in connection with" securities transactions.9 As noted earlier, however, see supra, at 654-655, the textual requirement of deception precludes § 10(b) liability when a person trading on the basis of nonpublic information has disclosed his trading plans to, or obtained authorization from, the principal-even though such conduct may affect the securities markets in the same manner as the conduct reached by the misappropriation theory. Contrary to JUSTICE THOMAS' suggestion, see post, at 689-691, the fact that § 10(b) is only a partial antidote to the problems it was designed to alleviate does not call into question its prohibition of conduct that falls within its textual proscription. Moreover, once a disloyal agent discloses his imminent breach of duty, his principal may seek appropriate equitable relief under state law. Furthermore, in the context of a tender offer, the principal who authorizes an agent's trading on confidential information may, in the Commission's view, incur liability for an Exchange Act violation under Rule 14e-3(a).660CThe Court of Appeals rejected the misappropriation theory primarily on two grounds. First, as the Eighth Circuit comprehended the theory, it requires neither misrepresentation nor nondisclosure. See 92 F. 3d, at 618. As we just explained, however, see supra, at 654-655, deceptive nondisclosure is essential to the § 10(b) liability at issue. Concretely, in this case, "it [was O'Hagan's] failure to disclose his personal trading to Grand Met and Dorsey, in breach of his duty to do so, that ma[de] his conduct 'deceptive' within the meaning of [§ ]lO(b)." Reply Brief 7.Second and "more obvious," the Court of Appeals said, the misappropriation theory is not moored to § 10(b)'s requirement that "the fraud be 'in connection with the purchase or sale of any security.'" 92 F. 3d, at 618 (quoting 15 U. S. C. § 78j(b)). According to the Eighth Circuit, three of our decisions reveal that § 10(b) liability cannot be predicated on a duty owed to the source of nonpublic information: Chiarella v. United States, 445 U. S. 222 (1980); Dirks v. SEC, 463 U. S. 646 (1983); and Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164 (1994). "[O]nly a breach of a duty to parties to the securities transaction," the Court of Appeals concluded, "or, at the most, to other market participants such as investors, will be sufficient to give rise to § 10(b) liability." 92 F. 3d, at 618. We read the statute and our precedent differently, and note again that § 10(b) refers to "the purchase or sale of any security," not to identifiable purchasers or sellers of securities.Chiarella involved securities trades by a printer employed at a shop that printed documents announcing corporate takeover bids. See 445 U. S., at 224. Deducing the names of target companies from documents he handled, the printer bought shares of the targets before takeover bids were announced, expecting (correctly) that the share prices would rise upon announcement. In these transactions, the printer did not disclose to the sellers of the securities (the target661companies' shareholders) the nonpublic information on which he traded. See ibid. For that trading, the printer was convicted of violating § 10(b) and Rule 10b-5. We reversed the Court of Appeals judgment that had affirmed the conviction. See id., at 225.The jury in Chiarella had been instructed that it could convict the defendant if he willfully failed to inform sellers of target company securities that he knew of a takeover bid that would increase the value of their shares. See id., at 226. Emphasizing that the printer had no agency or other fiduciary relationship with the sellers, we held that liability could not be imposed on so broad a theory. See id., at 235. There is under § 10(b), we explained, no "general duty between all participants in market transactions to forgo actions based on material, nonpublic information." Id., at 233. Under established doctrine, we said, a duty to disclose or abstain from trading "arises from a specific relationship between two parties." Ibid.The Court did not hold in Chiarella that the only relationship prompting liability for trading on undisclosed information is the relationship between a corporation's insiders and shareholders. That is evident from our response to the Government's argument before this Court that the printer's misappropriation of information from his employer for purposes of securities trading-in violation of a duty of confidentiality owed to the acquiring companies-constituted fraud in connection with the purchase or sale of a security, and thereby satisfied the terms of § 10(b). Id., at 235-236. The Court declined to reach that potential basis for the printer's liability, because the theory had not been submitted to the jury. See id., at 236-237. But four Justices found merit in it. See id., at 239 (Brennan, J., concurring in judgment); id., at 240-243 (Burger, C. J., dissenting); id., at 245 (Blackmun, J., joined by Marshall, J., dissenting). And a fifth Justice stated that the Court "wisely le[ft] the resolution of this issue for another day." Id., at 238 (STEVENS, J., concurring).662Chiarella thus expressly left open the misappropriation theory before us today. Certain statements in Chiarella, however, led the Eighth Circuit in the instant case to conclude that § 10(b) liability hinges exclusively on a breach of duty owed to a purchaser or seller of securities. See 92 F. 3d, at 618. The Court said in Chiarella that § 10(b) liability "is premised upon a duty to disclose arising from a relationship of trust and confidence between parties to a transaction," 445 U. S., at 230 (emphasis added), and observed that the printshop employee defendant in that case "was not a person in whom the sellers had placed their trust and confidence," see id., at 232. These statements rejected the notion that § 10(b) stretches so far as to impose "a general duty between all participants in market transactions to forgo actions based on material, nonpublic information," id., at 233, and we confine them to that context. The statements highlighted by the Eighth Circuit, in short, appear in an opinion carefully leaving for future resolution the validity of the misappropriation theory, and therefore cannot be read to foreclose that theory.Dirks, too, left room for application of the misappropriation theory in cases like the one we confront.lO Dirks involved an investment analyst who had received information from a former insider of a corporation with which the analyst had no connection. See 463 U. S., at 648-649. The information indicated that the corporation had engaged in a massive fraud. The analyst investigated the fraud, obtaining corroborating information from employees of the corporation. During his investigation, the analyst discussed his findings with clients and investors, some of whom sold their holdings in the company the analyst suspected of gross wrongdoing. See id., at 649.10 The Eighth Circuit's conclusion to the contrary was based in large part on Dirks's reiteration of the Chiarella language quoted and discussed above. See 92 F.3d 612, 618-619 (1996).663The SEC censured the analyst for, inter alia, aiding and abetting § 10(b) and Rule 10b-5 violations by clients and investors who sold their holdings based on the nonpublic information the analyst passed on. See id., at 650-652. In the SEC's view, the analyst, as a "tippee" of corporation insiders, had a duty under § 10(b) and Rule 10b-5 to refrain from communicating the nonpublic information to persons likely to trade on the basis of it. See id., at 651, 655-656. This Court found no such obligation, see id., at 665-667, and repeated the key point made in Chiarella: There is no "'general duty between all participants in market transactions to forgo actions based on material, nonpublic information.'" 463 U. S., at 655 (quoting Chiarella, 445 U. S., at 233); see Aldave, 13 Hofstra L. Rev., at 122 (misappropriation theory bars only "trading on the basis of information that the wrongdoer converted to his own use in violation of some fiduciary, contractual, or similar obligation to the owner or rightful possessor of the information").No showing had been made in Dirks that the "tippers" had violated any duty by disclosing to the analyst nonpublic information about their former employer. The insiders had acted not for personal profit, but to expose a massive fraud within the corporation. See 463 U. S., at 666-667. Absent any violation by the tippers, there could be no derivative liability for the tippee. See id., at 667. Most important for purposes of the instant case, the Court observed in Dirks:"There was no expectation by [the analyst's] sources that he would keep their information in confidence. Nor did [the analyst] misappropriate or illegally obtain the information .... " Id., at 665. Dirks thus presents no suggestion that a person who gains nonpublic information through misappropriation in breach of a fiduciary duty escapes § 10(b) liability when, without alerting the source, he trades on the information.Last of the three cases the Eighth Circuit regarded as warranting disapproval of the misappropriation theory, Cen-664tral Bank held that "a private plaintiff may not maintain an aiding and abetting suit under § 10(b)." 511 U. S., at 191. We immediately cautioned in Central Bank that secondary actors in the securities markets may sometimes be chargeable under the securities Acts: "Any person or entity, including a lawyer, accountant, or bank, who employs a manipulative device or makes a material misstatement (or omission) on which a purchaser or seller of securities relies may be liable as a primary violator under 10b-5, assuming ... the requirements for primary liability under Rule 10b-5 are met." Ibid. (emphasis added). The Eighth Circuit isolated the statement just quoted and drew from it the conclusion that § 10(b) covers only deceptive statements or omissions on which purchasers and sellers, and perhaps other market participants, rely. See 92 F. 3d, at 619. It is evident from the question presented in Central Bank, however, that this Court, in the quoted passage, sought only to clarify that secondary actors, although not subject to aiding and abetting liability, remain subject to primary liability under § 10(b) and Rule 10b-5 for certain conduct.Furthermore, Central Bank's discussion concerned only private civil litigation under § 10(b) and Rule 10b-5, not criminal liability. Central Bank's reference to purchasers or sellers of securities must be read in light of a longstanding limitation on private § 10(b) suits. In Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723 (1975), we held that only actual purchasers or sellers of securities may maintain a private civil action under § 10(b) and Rule 10b-5. We so confined the § 10(b) private right of action because of "policy considerations." Id., at 737. In particular, Blue Chip Stamps recognized the abuse potential and proof problems inherent in suits by investors who neither bought nor sold, but asserted they would have traded absent fraudulent conduct by others. See id., at 739-747; see also Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 285665(1992) (O'CONNOR, J., concurring in part and concurring in judgment); id., at 289-290 (SCALIA, J., concurring in judgment). Criminal prosecutions do not present the dangers the Court addressed in Blue Chip Stamps, so that decision is "inapplicable" to indictments for violations of § 10(b) and Rule 10b-5. United States v. Naftalin, 441 U. S. 768, 774, n. 6 (1979); see also Holmes, 503 U. S., at 281 (O'CONNOR, J., concurring in part and concurring in judgment) ("[T]he purchaser/seller standing requirement for private civil actions under § 10(b) and Rule 10b-5 is of no import in criminal prosecutions for willful violations of those provisions.").In sum, the misappropriation theory, as we have examined and explained it in this opinion, is both consistent with the statute and with our precedent.ll Vital to our decision that criminal liability may be sustained under the misappropriation theory, we emphasize, are two sturdy safeguards Congress has provided regarding scienter. To establish a criminal violation of Rule 10b-5, the Government must prove that a person "willfully" violated the provision. See 15 U. S. C.11 The United States additionally argues that Congress confirmed the validity of the misappropriation theory in the Insider Trading and Securities Fraud Enforcement Act of 1988 (ITSFEA), §2(1), 102 Stat. 4677, note following 15 U. S. C. § 78u-1. See Brief for United States 32-35. ITSFEA declares that "the rules and regulations of the Securities and Exchange Commission under the Securities Exchange Act of 1934 ... governing trading while in possession of material, nonpublic information are, as required by such Act, necessary and appropriate in the public interest and for the protection of investors." Note following 15 U. S. C. § 78u-1. ITSFEA also includes a new § 20A(a) of the Exchange Act expressly providing a private cause of action against persons who violate the Exchange Act "by purchasing or selling a security while in possession of material, nonpublic information"; such an action may be brought by "any person who, contemporaneously with the purchase or sale of securities that is the subject of such violation, has purchased ... or sold ... securities of the same class." 15 U. S. C. § 78t-1(a). Because we uphold the misappropriation theory on the basis of § 10(b) itself, we do not address ITSFEA's significance for cases of this genre.666§ 78ff(a).12 Furthermore, a defendant may not be imprisoned for violating Rule 10b-5 if he proves that he had no knowledge of the Rule. See ibid.13 O'Hagan's charge that the misappropriation theory is too indefinite to permit the imposition of criminal liability, see Brief for Respondent 3033, thus fails not only because the theory is limited to those who breach a recognized duty. In addition, the statute's "requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the [statute]" in circumstances such as O'Hagan's is unjust. Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342 (1952).The Eighth Circuit erred in holding that the misappropriation theory is inconsistent with § 10(b). The Court of Appeals may address on remand O'Hagan's other challenges to his convictions under § 10(b) and Rule 10b-5.IIIWe consider next the ground on which the Court of Appeals reversed O'Hagan's convictions for fraudulent trading in connection with a tender offer, in violation of § 14(e) of the Exchange Act and SEC Rule 14e-3(a). A sole question is before us as to these convictions: Did the Commission, as the Court of Appeals held, exceed its rulemaking authority under § 14(e) when it adopted Rule 14e-3(a) without requiring a showing that the trading at issue entailed a breach of12 In relevant part, § 32 of the Exchange Act, as set forth in 15 U. S. C. § 78ff(a), provides:"Any person who willfully violates any provision of this chapter ... or any rule or regulation thereunder the violation of which is made unlawful or the observance of which is required under the terms of this chapter ... shall upon conviction be fined not more than $1,000,000, or imprisoned not more than 10 years, or both ... ; but no person shall be subject to imprisonment under this section for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation."13 The statute provides no such defense to imposition of monetary fines.See ibid.667fiduciary duty? We hold that the Commission, in this regard and to the extent relevant to this case, did not exceed its authority.The governing statutory provision, § 14(e) of the Exchange Act, reads in relevant part:"It shall be unlawful for any person ... to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer .... The [SEC] shall, for the purposes of this subsection, by rules and regulations define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative." 15 U. S. C. § 78n(e).Section 14(e)'s first sentence prohibits fraudulent acts in connection with a tender offer. This self-operating proscription was one of several provisions added to the Exchange Act in 1968 by the Williams Act, 82 Stat. 454. The section's second sentence delegates definitional and prophylactic rulemaking authority to the Commission. Congress added this rulemaking delegation to § 14(e) in 1970 amendments to the Williams Act. See § 5,84 Stat. 1497.Through § 14(e) and other provisions on disclosure in the Williams Act,14 Congress sought to ensure that shareholders "confronted by a cash tender offer for their stock [would] not be required to respond without adequate information." Rondeau v. Mosinee Paper Corp., 422 U. S. 49,58 (1975); see Lewis v. McGraw, 619 F.2d 192, 195 (CA2 1980) (per curiam)14 In addition to § 14(e), the Williams Act and the 1970 amendments added to the Exchange Act the following provisions concerning disclosure: § 13(d), 15 U. S. C. § 78m(d) (disclosure requirements for persons acquiring more than five percent of certain classes of securities); § 13(e), 15 U. S. C. § 78m(e) (authorizing Commission to adopt disclosure requirements for certain repurchases of securities by issuer); § 14(d), 15 U. S. C. § 78n(d) (disclosure requirements when tender offer results in offeror owning more than five percent of a class of securities); § 14(f), 15 U. S. C. § 78n(f) (disclosure requirements when tender offer results in new corporate directors constituting a majority).668("very purpose" of Williams Act was "informed decisionmaking by shareholders"). As we recognized in Schreiber v. Burlington Northern, Inc., 472 U. S. 1 (1985), Congress designed the Williams Act to make "disclosure, rather than court-imposed principles of 'fairness' or 'artificiality,' ... the preferred method of market regulation." Id., at 9, n. 8. Section 14(e), we explained, "supplements the more precise disclosure provisions found elsewhere in the Williams Act, while requiring disclosure more explicitly addressed to the tender offer context than that required by § 10(b)." Id., at 10-11.Relying on § 14(e)'s rulemaking authorization, the Commission, in 1980, promulgated Rule 14e-3(a). That measure provides:"(a) If any person has taken a substantial step or steps to commence, or has commenced, a tender offer (the 'offering person'), it shall constitute a fraudulent, deceptive or manipulative act or practice within the meaning of section 14(e) of the [Exchange] Act for any other person who is in possession of material information relating to such tender offer which information he knows or has reason to know is nonpublic and which he knows or has reason to know has been acquired directly or indirectly from:"(1) The offering person,"(2) The issuer of the securities sought or to be sought by such tender offer, or"(3) Any officer, director, partner or employee or any other person acting on behalf of the offering person or such issuer, to purchase or sell or cause to be purchased or sold any of such securities or any securities convertible into or exchangeable for any such securities or any option or right to obtain or to dispose of any of the foregoing securities, unless within a reasonable time prior to any purchase or sale such information and its source669are publicly disclosed by press release or otherwise." 17 CFR § 240.14e-3(a) (1996).As characterized by the Commission, Rule 14e-3(a) is a "disclose or abstain from trading" requirement. 45 Fed. Reg. 60410 (1980).15 The Second Circuit concisely described the Rule's thrust:"One violates Rule 14e-3(a) if he trades on the basis of material nonpublic information concerning a pending tender offer that he knows or has reason to know has been acquired 'directly or indirectly' from an insider of the offeror or issuer, or someone working on their behalf. Rule 14e-3(a) is a disclosure provision. It creates a duty in those traders who fall within its ambit to abstain or disclose, without regard to whether the trader owes a pre-existing fiduciary duty to respect the confidentiality of the information." United States v. Chestman, 947 F.2d 551, 557 (1991) (en bane) (emphasis added), cert. denied, 503 U. S. 1004 (1992).See also SEC v. Maio, 51 F.3d 623, 635 (CA7 1995) ("Rule 14e-3 creates a duty to disclose material non-public information, or abstain from trading in stocks implicated by an impending tender offer, regardless of whether such information was obtained through a breach of fiduciary duty." (emphasis added)); SEC v. Peters, 978 F.2d 1162, 1165 (CAlO 1992) (as written, Rule 14e-3(a) has no fiduciary duty requirement).In the Eighth Circuit's view, because Rule 14e-3(a) applies whether or not the trading in question breaches a fiduciary duty, the regulation exceeds the SEC's § 14(e) rulemaking authority. See 92 F. 3d, at 624, 627. Contra, Maio, 51 F. 3d, at 634-635 (CA7); Peters, 978 F. 2d, at 1165-1167 (CAlO);15 The Rule thus adopts for the tender offer context a requirement resembling the one Chief Justice Burger would have adopted in Chiarella for misappropriators under § lO(b). See supra, at 655, n. 6.670Chestman, 947 F. 2d, at 556-563 (CA2) (all holding Rule 14e3(a) a proper exercise of SEC's statutory authority). In support of its holding, the Eighth Circuit relied on the text of § 14(e) and our decisions in Schreiber and Chiarella. See 92The Eighth Circuit homed in on the essence of § 14(e)'s rulemaking authorization: "[T]he statute empowers the SEC to 'define' and 'prescribe means reasonably designed to prevent' 'acts and practices' which are 'fraudulent.''' Id., at 624. All that means, the Eighth Circuit found plain, is that the SEC may "identify and regulate," in the tender offer context, "acts and practices" the law already defines as "fraudulent"; but, the Eighth Circuit maintained, the SEC may not "create its own definition of fraud." Ibid. (internal quotation marks omitted).This Court, the Eighth Circuit pointed out, held in Schreiber that the word "manipulative" in the § 14(e) phrase "fraudulent, deceptive, or manipulative acts or practices" means just what the word means in § 10(b): Absent misrepresentation or nondisclosure, an act cannot be indicted as manipulative. See 92 F. 3d, at 625 (citing Schreiber, 472 U. S., at 7-8, and n. 6). Section 10(b) interpretations guide construction of § 14(e), the Eighth Circuit added, see 92 F. 3d, at 625, citing this Court's acknowledgment in Schreiber that § 14(e)'s "'broad antifraud prohibition' ... [is] modeled on the antifraud provisions of § 10(b) ... and Rule 10b-5," 472 U. S., at 10 (citation omitted); see id., at 10-11, n. 10.For the meaning of "fraudulent" under § 10(b), the Eighth Circuit looked to Chiarella. See 92 F. 3d, at 625. In that case, the Eighth Circuit recounted, this Court held that a failure to disclose information could be "fraudulent" under § 10(b) only when there was a duty to speak arising out of" 'a fiduciary or other similar relation of trust and confidence.''' Chiarella, 445 U. S., at 228 (quoting Restatement (Second) of Torts § 551(2)(a) (1976)). Just as § 10(b) demands a showing671of a breach of fiduciary duty, so such a breach is necessary to make out a § 14(e) violation, the Eighth Circuit concluded.As to the Commission's § 14(e) authority to "prescribe means reasonably designed to prevent" fraudulent acts, the Eighth Circuit stated: "Properly read, this provision means simply that the SEC has broad regulatory powers in the field of tender offers, but the statutory terms have a fixed meaning which the SEC cannot alter by way of an administrative rule." 92 F. 3d, at 627.The United States urges that the Eighth Circuit's reading of § 14(e) misapprehends both the Commission's authority to define fraudulent acts and the Commission's power to prevent them. "The 'defining' power," the United States submits, "would be a virtual nullity were the SEC not permitted to go beyond common law fraud (which is separately prohibited in the first [self-operative] sentence of Section 14(e))." Brief for United States 11; see id., at 37.In maintaining that the Commission's power to define fraudulent acts under § 14(e) is broader than its rulemaking power under § 10(b), the United States questions the Court of Appeals' reading of Schreiber. See Brief for United States 38-40. Parenthetically, the United States notes that the word before the Schreiber Court was "manipulative"; unlike "fraudulent," the United States observes, "'manipulative' ... is 'virtually a term of art when used in connection with the securities markets.'" Brief for United States 38, n. 20 (quoting Schreiber, 472 U. S., at 6). Most tellingly, the United States submits, Schreiber involved acts alleged to violate the self-operative provision in § 14(e)'s first sentence, a sentence containing language similar to § 10(b). But § 14(e)'s second sentence, containing the rulemaking authorization, the United States points out, does not track § 10(b), which simply authorizes the SEC to proscribe "manipulative or deceptive device[s] or contrivance[s]." Brief for United States 38. Instead, § 14(e)'s rulemaking prescription tracks § 15(c)(2)(D) of the Exchange Act, 15 U. S. C. § 78o(c)(2)(D),672which concerns the conduct of broker-dealers in over-thecounter markets. See Brief for United States 38-39. Since 1938, see 52 Stat. 1075, § 15(c)(2) has given the Commission authority to "define, and prescribe means reasonably designed to prevent, such [broker-dealer] acts and practices as are fraudulent, deceptive, or manipulative." 15 U. S. C. § 78o(c)(2)(D). When Congress added this same rulemaking language to § 14(e) in 1970, the Government states, the Commission had already used its § 15(c)(2) authority to reach beyond common-law fraud. See Brief for United States 39, n.22.16We need not resolve in this case whether the Commission's authority under § 14(e) to "define ... such acts and practices as are fraudulent" is broader than the Commission's frauddefining authority under § 10(b), for we agree with the United States that Rule 14e-3(a), as applied to cases of this genre, qualifies under § 14(e) as a "means reasonably designed to prevent" fraudulent trading on material, nonpublic information in the tender offer context.17 A prophylactic16 The Government draws our attention to the following measures: 17 CFR §240.15c2-1 (1970) (prohibiting a broker-dealer's hypothecation of a customer's securities if hypothecated securities would be commingled with the securities of another customer, absent written consent); §240.15c2-3 (prohibiting transactions by broker-dealers in unvalidated German securities); § 240.15c2-4 (prohibiting broker-dealers from accepting any part of the sale price of a security being distributed unless the money received is promptly transmitted to the persons entitled to it); § 240.15c2-5 (requiring broker-dealers to provide written disclosure of credit terms and commissions in connection with securities sales in which broker-dealers extend credit, or participate in arranging for loans, to the purchasers). See Brief for United States 39, n. 22.17We leave for another day, when the issue requires decision, the legitimacy of Rule 14e-3(a) as applied to "warehousing," which the Government describes as "the practice by which bidders leak advance information of a tender offer to allies and encourage them to purchase the target company's stock before the bid is announced." Reply Brief 17. As we observed in Chiarella, one of the Commission's purposes in proposing Rule 14e-3(a)673measure, because its mission is to prevent, typically encompasses more than the core activity prohibited. As we noted in Schreiber, § 14(e)'s rulemaking authorization gives the Commission "latitude," even in the context of a term of art like "manipulative," "to regulate nondeceptive activities as a 'reasonably designed' means of preventing manipulative acts, without suggesting any change in the meaning of the term 'manipulative' itself." 472 U. S., at 11, n. 11. We hold, accordingly, that under § 14(e), the Commission may prohibit acts not themselves fraudulent under the common law or § 10(b), if the prohibition is "reasonably designed to prevent ... acts and practices [that] are fraudulent." 15 U. S. C. § 78n(e).18Because Congress has authorized the Commission, in § 14(e), to prescribe legislative rules, we owe the Commission's judgment "more than mere deference or weight." Batterton v. Francis, 432 U. S. 416, 424-426 (1977). Therefore, in determining whether Rule 14e-3(a)'s "disclose or abstain from trading" requirement is reasonably designed to prevent fraudulent acts, we must accord the Commission's assessment "controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). In this case, we conclude, the Commission's assessment is none of these.19was "to bar warehousing under its authority to regulate tender offers." 445 U. S., at 234. The Government acknowledges that trading authorized by a principal breaches no fiduciary duty. See Reply Brief 17. The instant case, however, does not involve trading authorized by a principal; therefore, we need not here decide whether the Commission's proscription of warehousing falls within its § 14(e) authority to define or prevent fraud.18The Commission's power under § lO(b) is more limited. See supra, at 651 (Rule 10b-5 may proscribe only conduct that § 10(b) prohibits).19 JUSTICE THOMAS' dissent urges that the Commission must be precise about the authority it is exercising-that it must say whether it is acting to "define" or to "prevent" fraud-and that in this instance it has pur-674In adopting the "disclose or abstain" rule, the SEC explained:"The Commission has previously expressed and continues to have serious concerns about trading by persons in possession of material, nonpublic information relating to a tender offer. This practice results in unfair disparities in market information and market disruption. Security holders who purchase from or sell to such persons are effectively denied the benefits of disclosure and the substantive protections of the Williams Act. If furnished with the information, these security holders would be able to make an informed investment decision, which could involve deferring the purchase or sale of the securities until the material information had been disseminated or until the tender offer had been commenced or terminated." 45 Fed. Reg. 60412 (1980) (footnotes omitted).The Commission thus justified Rule 14e-3(a) as a means necessary and proper to assure the efficacy of Williams Act protections.The United States emphasizes that Rule 14e-3(a) reaches trading in which "a breach of duty is likely but difficult to prove." Reply Brief 16. "Particularly in the context of a tender offer," as the Tenth Circuit recognized, "there is a fairly wide circle of people with confidential information," Peters, 978 F. 2d, at 1167, notably, the attorneys, investmentported only to define, not to prevent. See post, at 696. JUSTICE THOMAS sees this precision in Rule 14e-3(a)'s words: "it shall constitute a fraudulent ... act ... within the meaning of section 14(e) .... " We do not find the Commission's Rule vulnerable for failure to recite as a regulatory preamble: We hereby exercise our authority to "define, and prescribe means reasonably designed to prevent, ... [fraudulent] acts." Sensibly read, the Rule is an exercise of the Commission's full authority. Logically and practically, such a rule may be conceived and defended, alternatively, as definitional or preventive.675bankers, and accountants involved in structuring the transaction. The availability of that information may lead to abuse, for "even a hint of an upcoming tender offer may send the price of the target company's stock soaring." SEe v. Materia, 745 F.2d 197, 199 (CA2 1984). Individuals entrusted with nonpublic information, particularly if they have no long-term loyalty to the issuer, may find the temptation to trade on that information hard to resist in view of "the very large short-term profits potentially available [to them]." Peters, 978 F. 2d, at 1167."[I]t may be possible to prove circumstantially that a person [traded on the basis of material, nonpublic information], but almost impossible to prove that the trader obtained such information in breach of a fiduciary duty owed either by the trader or by the ultimate insider source of the information." Ibid. The example of a "tippee" who trades on information received from an insider illustrates the problem. Under Rule 10b-5, "a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach." Dirks, 463 U. S., at 660. To show that a tippee who traded on nonpublic information about a tender offer had breached a fiduciary duty would require proof not only that the insider source breached a fiduciary duty, but that the tippee knew or should have known of that breach. "Yet, in most cases, the only parties to the [information transfer] will be the insider and the alleged tippee." Peters, 978 F. 2d, at 1167.2020 JUSTICE THOMAS opines that there is no reason to anticipate difficulties in proving breach of duty in "misappropriation" cases. "Once the source of the [purloined] information has been identified," he asserts, "it should be a simple task to obtain proof of any breach of duty." Post, at 697. To test that assertion, assume a misappropriating partner at Dor-676In sum, it is a fair assumption that trading on the basis of material, nonpublic information will often involve a breach of a duty of confidentiality to the bidder or target company or their representatives. The SEC, cognizant of the proof problem that could enable sophisticated traders to escape responsibility, placed in Rule 14e-3(a) a "disclose or abstain from trading" command that does not require specific proof of a breach of fiduciary duty. That prescription, we are satisfied, applied to this case, is a "means reasonably designed to prevent" fraudulent trading on material, nonpublic information in the tender offer context. See Chestman, 947 F. 2d, at 560 ("While dispensing with the subtle problems of proof associated with demonstrating fiduciary breach in the problematic area of tender offer insider trading, [Rule 14e3(a)] retains a close nexus between the prohibited conduct and the statutory aims."); accord, Maio, 51 F. 3d, at 635, and n. 14; Peters, 978 F. 2d, at 1167.21 Therefore, insofar as it serves to prevent the type of misappropriation charged against O'Hagan, Rule 14e-3(a) is a proper exercise of the Commission's prophylactic power under § 14(e).22As an alternate ground for affirming the Eighth Circuit's judgment, O'Hagan urges that Rule 14e-3(a) is invalid be-sey & Whitney told his daughter or son and a wealthy friend that a tender for Pillsbury was in the offing, and each tippee promptly purchased Pillsbury stock, the child borrowing the purchase price from the wealthy friend. JUSTICE THOMAS' confidence, post, at 698, n. 12, that "there is no reason to suspect that the tipper would gratuitously protect the tippee," seems misplaced.21 JUSTICE THOMAS insists that even if the misappropriation of information from the bidder about a tender offer is fraud, the Commission has not explained why such fraud is "in connection with" a tender offer. Post, at 697, 698. What else, one can only wonder, might such fraud be "in connection with"?22 Repeating the argument it made concerning the misappropriation theory, see supra, at 665, n. 11, the United States urges that Congress confirmed Rule 14e-3(a)'s validity in ITSFEA, 15 U. S. C. § 78u-1. See Brief for United States 44-45. We uphold Rule 14e-3(a) on the basis of § 14(e) itself and need not address ITSFEA's relevance to this case.677cause it prohibits trading in advance of a tender offer-when "a substantial step ... to commence" such an offer has been taken-while § 14(e) prohibits fraudulent acts "in connection with any tender offer." See Brief for Respondent 41-42. O'Hagan further contends that, by covering pre-offer conduct, Rule 14e-3(a) "fails to comport with due process on two levels": The Rule does not "give fair notice as to when, in advance of a tender offer, a violation of § 14(e) occurs," id., at 42; and it "disposes of any scienter requirement," id., at 43. The Court of Appeals did not address these arguments, and O'Hagan did not raise the due process points in his briefs before that court. We decline to consider these contentions in the first instance.23 The Court of Appeals may address on remand any arguments O'Hagan has preserved.IVBased on its dispositions of the securities fraud convictions, the Court of Appeals also reversed O'Hagan's convictions, under 18 U. S. C. § 1341, for mail fraud. See 92 F. 3d, at 627-628. Reversal of the securities convictions, the Court of Appeals recognized, "d[id] not as a matter of law require that the mail fraud convictions likewise be reversed." Id., at 627 (citing Carpenter, 484 U. S., at 24, in which this Court unanimously affirmed mail and wire fraud convictions based on the same conduct that evenly divided the Court on the defendants' securities fraud convictions). But in this case, the Court of Appeals said, the indictment was so structured that the mail fraud charges could not be disassociated from the securities fraud charges, and absent any securities23 As to O'Hagan's scienter argument, we reiterate that 15 U. S. C. § 78ff(a) requires the Government to prove "willful[l] violat[ion]" of the securities laws, and that lack of knowledge of the relevant rule is an affirmative defense to a sentence of imprisonment. See supra, at 665-666.678fraud, "there was no fraud upon which to base the mail fraud charges." 92 F. 3d, at 627-628.24The United States urges that the Court of Appeals' position is irreconcilable with Carpenter: Just as in Carpenter, so here, the "mail fraud charges are independent of [the] securities fraud charges, even [though] both rest on the same set of facts." Brief for United States 46-47. We need not linger over this matter, for our rulings on the securities fraud issues require that we reverse the Court of Appeals judgment on the mail fraud counts as well.25O'Hagan, we note, attacked the mail fraud convictions in the Court of Appeals on alternate grounds; his other arguments, not yet addressed by the Eighth Circuit, remain open for consideration on remand.***The judgment of the Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered | OCTOBER TERM, 1996SyllabusUNITED STATES v. O'HAGANCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 96-842. Argued April 16, 1997-Decided June 25,1997After Grand Metropolitan PLC (Grand Met) retained the law firm of Dorsey & Whitney to represent it regarding a potential tender offer for the Pillsbury Company's common stock, respondent O'Hagan, a Dorsey & Whitney partner who did no work on the representation, began purchasing call options for Pillsbury stock, as well as shares of the stock. Following Dorsey & Whitney's withdrawal from the representation, Grand Met publicly announced its tender offer, the price of Pillsbury stock rose dramatically, and O'Hagan sold his call options and stock at a profit of more than $4.3 million. A Securities and Exchange Commission (SEC) investigation culminated in a 57-count indictment alleging, inter alia, that O'Hagan defrauded his law firm and its client, Grand Met, by misappropriating for his own trading purposes material, nonpublic information regarding the tender offer. The indictment charged O'Hagan with securities fraud in violation of § lO(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, with fraudulent trading in connection with a tender offer in violation of § 14(e) of the Exchange Act and SEC Rule 14e-3(a), and with violations of the federal mail fraud and money laundering statutes. A jury convicted O'Hagan on all counts, and he was sentenced to prison. The Eighth Circuit reversed all of the convictions, holding that § 10(b) and Rule 10b-5liability may not be grounded on the "misappropriation theory" of securities fraud on which the prosecution relied; that Rule 14e-3(a) exceeds the SEC's § 14(e) rulemaking authority because the Rule contains no breach of fiduciary duty requirement; and that the mail fraud and money laundering convictions rested on violations of the securities laws, so could not stand once the securities fraud convictions were reversed.Held:1. A person who trades in securities for personal profit, using confidential information misappropriated in breach of a fiduciary duty to the source of the information, may be held liable for violating § 10(b) and Rule 10b-5. Pp. 649-666.(a) Section lO(b) proscribes (1) using any "deceptive device" (2) "in connection with the purchase or sale of any security," in contravention of SEC rules. The Commission adopted Rule 10b-5 pursuant to its § lO(b) rulemaking authority; liability under Rule lOb-5 does not ex-643tend beyond conduct encompassed by § 10(b)'s prohibition. See, e. g., Ernst & Ernst v. Hochfelder, 425 U. S. 185, 214. Under the "traditional" or "classical theory" of insider trading liability, a violation of § lO(b) and Rule lOb-5 occurs when a corporate insider trades in his corporation's securities on the basis of material, confidential information he has obtained by reason of his position. Such trading qualifies as a "deceptive device" because there is a relationship of trust and confidence between the corporation's shareholders and the insider that gives rise to a duty to disclose or abstain from trading. Chiarella v. United States, 445 U. S. 222, 228-229. Under the complementary "misappropriation theory" urged by the Government here, a corporate "outsider" violates § lO(b) and Rule lOb-5 when he misappropriates confidential information for securities trading purposes, in breach of a fiduciary duty owed to the source of the information, rather than to the persons with whom he trades. Pp. 650-653.(b) Misappropriation, as just defined, is the proper subject of a § lO(b) charge because it meets the statutory requirement that there be "deceptive" conduct "in connection with" a securities transaction. First, misappropriators deal in deception: A fiduciary who pretends loyalty to the principal while secretly converting the principal's information for personal gain dupes or defrauds the principal. A company's confidential information qualifies as property to which the company has a right of exclusive use; the undisclosed misappropriation of such information constitutes fraud akin to embezzlement. Cf. Carpenter v. United States, 484 U. S. 19, 25-27. Deception through nondisclosure is central to liability under the misappropriation theory. The theory is thus consistent with Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 473-476, a decision underscoring that § lO(b) is not an all-purpose breach of fiduciary duty ban, but trains on conduct that is manipulative or deceptive. Conversely, full disclosure forecloses liability: Because the deception essential to the theory involves feigning fidelity to the information's source, if the fiduciary discloses to the source that he plans to trade on the information, there is no "deceptive device" and thus no § lO(b) violation. Second, § 10(b)'s requirement that the misappropriator's deceptive use of information be "in connection with the purchase or sale of [a] security" is satisfied by the misappropriation theory because the fiduciary's fraud is consummated not when he obtains the confidential information, but when, without disclosure to his principal, he uses the information in purchasing or selling securities. The transaction and the breach of duty coincide, even though the person or entity defrauded is not the other party to the trade, but is, instead, the source of the nonpublic information. Because undisclosed trading on the basis of misappropriated, nonpublic information both deceives the source of644Full Text of Opinion |
334 | 1996_96-511 | ard repeats the second part of the three-prong obscenity test set forth in Miller v. California, 413 U. S. 15,24. The second Miller prong reduces the inherent vagueness of its own "patently offensive" term by requiring that the proscribed material be "specifically defined by the applicable state law." In addition, the Miller definition applies only to "sexual conduct," whereas the CDA prohibition extends also to "excretory activities" and "organs" of both a sexual and excretory nature. Each of Miller's other two prongs also critically limits the uncertain sweep of the obscenity definition. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing alone, is not vague. The CDA's vagueness undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. Pp.870-874.(e) The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. Although the Government has an interest in protecting children from potentially harmful materials, see, e. g., Ginsberg, 390 U. S., at 639, the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive, see, e. g., Sable, 492 U. S., at 126. Its breadth is wholly unprecedented. The CDA's burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the Act's legitimate purposes. See, e. g., id., at 126. The Government has not proved otherwise. On the other hand, the District Court found that currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing material which the parents believe is inappropriate will soon be widely available. Moreover, the arguments in this Court referred to possible alternatives such as requiring that indecent material be "tagged" to facilitate parental control, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet differently from others. Particularly in the light of the absence of any detailed congressional findings, or even hearings addressing the CDA's special problems, the Court is persuaded that the CDA is not narrowly tailored. Pp.874-879.(f) The Government's three additional arguments for sustaining the CDA's affirmative prohibitions are rejected. First, the contention that the Act is constitutional because it leaves open ample "alternative channels" of communication is unpersuasive because the CDA regulates speech on the basis of its content, so that a "time, place, and manner" analysis is inapplicable. See, e. g., Consolidated Edison Co. of N. Y. v.847Public Servo Comm'n of N. Y., 447 U. S. 530, 536. Second, the assertion that the CDA's "knowledge" and "specific person" requirements significantly restrict its permissible application to communications to persons the sender knows to be under 18 is untenable, given that most Internet forums are open to all comers and that even the strongest reading of the "specific person" requirement would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech. Finally, there is no textual support for the submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's prohibitions. Pp. 879-881.(g) The § 223(e)(5) defenses do not constitute the sort of "narrow tailoring" that would save the CDA. The Government's argument that transmitters may take protective "good faith actio[n]" by "tagging" their indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriate software, is illusory, given the requirement that such action be "effective": The proposed screening software does not currently exist, but, even if it did, there would be no way of knowing whether a potential recipient would actually block the encoded material. The Government also failed to prove that § 223(b)(5)'s verification defense would significantly reduce the CDA's heavy burden on adult speech. Although such verification is actually being used by some commercial providers of sexually explicit material, the District Court's findings indicate that it is not economically feasible for most noncommercial speakers. Pp.881-882.(h) The Government's argument that this Court should preserve the CDA's constitutionality by honoring its severability clause, § 608, and by construing nonseverable terms narrowly, is acceptable in only one respect. Because obscene speech may be banned totally, see Miller, 413 U. S., at 18, and § 223(a)'s restriction of "obscene" material enjoys a textual manifestation separate from that for "indecent" material, the Court can sever the term "or indecent" from the statute, leaving the rest of § 223(a) standing. Pp. 882-885.(i) The Government's argument that its "significant" interest in fostering the Internet's growth provides an independent basis for upholding the CDA's constitutionality is singularly unpersuasive. The dramatic expansion of this new forum contradicts the factual basis underlying this contention: that the unregulated availability of "indecent" and "patently offensive" material is driving people away from the Internet. P. 885.929 F. Supp. 824, affirmed.848STEVENS, J., delivered the opinion of the Court, in which SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., joined, post, p. 886.Deputy Solicitor General Waxman argued the cause for appellants. On the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Irving L. Gornstein, BarbaraBruce J. Ennis, Jr., argued the cause for appellees. With him on the brief for appellees American Library Association et al. were Ann M. Kappler, Paul M. Smith, Donald B. Verrilli, Jr., John B. Morris, Jr., Jill Lesser, Richard M. Schmidt, Jr., Bruce Rich, James Wheaton, Jerry Berman, Elliot M. Mincberg, Lawrence S. Ottinger, Andrew J. Schwartzman, Ronald L. Plesser, James J. Halpert, Michael Traynor, Robert P. Taylor, Rene Milam, Marc Jacobson, Bruce W Sanford, and Henry S. Hoberman. Christopher A. Hansen, Steven R. Shapiro, Marjorie Heins, Catherine Weiss, Stefan Presser, David L. Sobel, Marc Rotenberg, and Roger Evans filed a brief for appellees American Civil Liberties Union Foundation et al. **Briefs of amici curiae urging reversal were filed for Member of Congress Dan Coats et al. by Bruce A. Taylor and Cathleen A. Cleaver; for Enough is Enough et al. by Ronald D. Maines; for the Family Life Project of the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, Keith A. Fournier, John G. Stepanovich, and Thomas P. Monaghan; for Morality in Media, Inc., by Paul J. McGeady and Robert W Peters; and for James J. Clancy by Mr. Clancy, pro se, and Carol A. Clancy.Briefs of amici curiae urging affirmance were filed for the American Association of University Professors et al. by James D. Crawford, Carl A. Solano, Theresa E. Loscalzo, Jennifer DuFault James, and Joseph T. Lukens; for Apollomedia Corporation et al. by William Bennett Turner; for the Association of National Advertisers, Inc., by P. Cameron DeVore, John J. Walsh, Steven G. Brody, Mary Elizabeth Taylor, Gilbert H. Weil, and Sol Schildhause; for the Chamber of Commerce of the United States by Clifford M. Sloan, Bert W Rein, Robert J. Butler, Stephen A. Bokat, and849JUSTICE STEVENS delivered the opinion of the Court.At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent" and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges "the freedom of speech" protected by the First Amendment.1IThe District Court made extensive findings of fact, most of which were based on a detailed stipulation prepared by the parties. See 929 F. Supp. 824, 830-849 (ED Pa. 1996).2 The findings describe the character and the dimensions of the Internet, the availability of sexually explicit material in that medium, and the problems confronting age verification for recipients of Internet communications. Because those findings provide the underpinnings for the legal issues, we begin with a summary of the undisputed facts.The InternetThe Internet is an international network of interconnected computers. It is the outgrowth of what began in 1969 as aRobin S. Conrad; for Feminists for Free Expression by Barbara M cDowell; for the National Association of Broadcasters et al. by Floyd Abrams, Jack N. Goodman, and Susanna M. Lowy; for Playboy Enterprises, Inc., by Robert Corn-Revere and Burton Joseph; for the Reporters Committee for Freedom of the Press et al. by Jane E. Kirtley and S. Mark Goodman; for Site Specific, Inc., et al. by Jamie B. W Stecher; and for Volunteer Lawyers for the Arts et al. by Daniel H. Weiner.Raphael Winick filed a brief of amicus curiae for the Speech Communication Association.1 "Congress shall make no law ... abridging the freedom of speech."2 The Court made 410 findings, including 356 paragraphs of the parties' stipulation and 54 findings based on evidence received in open court. See 929 F. Supp., at 830, n. 9, 842, n. 15.850military program called "ARPANET," 3 which was designed to enable computers operated by the military, defense contractors, and universities conducting defense-related research to communicate with one another by redundant channels even if some portions of the network were damaged in a war. While the ARPANET no longer exists, it provided an example for the development of a number of civilian networks that, eventually linking with each other, now enable tens of millions of people to communicate with one another and to access vast amounts of information from around the world. The Internet is "a unique and wholly new medium of worldwide human communication."4The Internet has experienced "extraordinary growth." 5 The number of "host" computers-those that store information and relay communications-increased from about 300 in 1981 to approximately 9,400,000 by the time of the trial in 1996. Roughly 60% of these hosts are located in the United States. About 40 million people used the Internet at the time of trial, a number that is expected to mushroom to 200 million by 1999.Individuals can obtain access to the Internet from many different sources, generally hosts themselves or entities with a host affiliation. Most colleges and universities provide access for their students and faculty; many corporations provide their employees with access through an office network; many communities and local libraries provide free access; and an increasing number of storefront "computer coffee shops" provide access for a small hourly fee. Several major national "online services" such as America Online, CompuServe, the Microsoft Network, and Prodigy offer access to their own extensive proprietary networks as well as a link to the much larger resources of the Internet. These com-3 An acronym for the network developed by the Advanced Research Project Agency.4Id., at 844 (finding 81). 5Id., at 831 (finding 3).851mercial online services had almost 12 million individual subscribers at the time of trial.Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. These methods are constantly evolving and difficult to categorize precisely. But, as presently constituted, those most relevant to this case are electronic mail (e-mail), automatic mailing list services ("mail exploders," sometimes referred to as "listservs"), "newsgroups," "chat rooms," and the "World Wide Web." All of these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique medium-known to its users as "cyberspace" -located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.E-mail enables an individual to send an electronic message-generally akin to a note or letter-to another individual or to a group of addressees. The message is generally stored electronically, sometimes waiting for the recipient to check her "mailbox" and sometimes making its receipt known through some type of prompt. A mail exploder is a sort of e-mail group. Subscribers can send messages to a common e-mail address, which then forwards the message to the group's other subscribers. Newsgroups also serve groups of regular participants, but these po stings may be read by others as well. There are thousands of such groups, each serving to foster an exchange of information or opinion on a particular topic running the gamut from, say, the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls. About 100,000 new messages are posted every day. In most newsgroups, po stings are automatically purged at regular intervals. In addition to posting a message that can be read later, two or more individuals wishing to communicate more immediately can enter a chat room to engage in real-time dialogue-in other words, by typing messages to one another that appear almost immediately on852the others' computer screens. The District Court found that at any given time "tens of thousands of users are engaging in conversations on a huge range of subjects." 6 It is "no exaggeration to conclude that the content on the Internet is as diverse as human thought."7The best known category of communication over the Internet is the World Wide Web, which allows users to search for and retrieve information stored in remote computers, as well as, in some cases, to communicate back to designated sites. In concrete terms, the Web consists of a vast number of documents stored in different computers all over the world. Some of these documents are simply files containing information. However, more elaborate documents, commonly known as Web "pages," are also prevalent. Each has its own address-"rather like a telephone number."s Web pages frequently contain information and sometimes allow the viewer to communicate with the page's (or "site's") author. They generally also contain "links" to other documents created by that site's author or to other (generally) related sites. Typically, the links are either blue or underlined text-sometimes images.Navigating the Web is relatively straightforward. A user may either type the address of a known page or enter one or more keywords into a commercial "search engine" in an effort to locate sites on a subject of interest. A particular Web page may contain the information sought by the "surfer," or, through its links, it may be an avenue to other documents located anywhere on the Internet. Users generally explore a given Web page, or move to another, by clicking a computer "mouse" on one of the page's icons or links. Access to most Web pages is freely available, but some allow access only to those who have purchased the right from a6Id., at 835 (finding 27). 7Id., at 842 (finding 74). 8Id., at 836 (finding 36).853commercial provider. The Web is thus comparable, from the readers' viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.From the publishers' point of view, it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can "publish" information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals.9 Publishers may either make their material available to the entire pool of Internet users, or confine access to a selected group, such as those willing to pay for the privilege. "No single organization controls any membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web." 10Sexually Explicit MaterialSexually explicit material on the Internet includes text, pictures, and chat and "extends from the modestly titillating to the hardest-core." 11 These files are created, named, and posted in the same manner as material that is not sexually explicit, and may be accessed either deliberately or unintentionally during the course of an imprecise search. "Once a provider posts its content on the Internet, it cannot prevent that content from entering any community." 12 Thus, for example,9 "Web publishing is simple enough that thousands of individual users and small community organizations are using the Web to publish their own personal 'home pages,' the equivalent of individualized newsletters about that person or organization, which are available to everyone on the Web." Id., at 837 (finding 42).l°Id., at 838 (finding 46). 11 Id., at 844 (finding 82). 12 Ibid. (finding 86).854"when the UCR/California Museum of Photography posts to its Web site nudes by Edward Weston and Robert Mapplethorpe to announce that its new exhibit will travel to Baltimore and New York City, those images are available not only in Los Angeles, Baltimore, and New York City, but also in Cincinnati, Mobile, or Beijing-wherever Internet users live. Similarly, the safer sex instructions that Critical Path posts to its Web site, written in street language so that the teenage receiver can understand them, are available not just in Philadelphia, but also in Provo and Prague." 13Some of the communications over the Internet that originate in foreign countries are also sexually explicit.14Though such material is widely available, users seldom encounter such content accidentally. "A document's title or a description of the document will usually appear before the document itself ... and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content." 15 For that reason, the "odds are slim" that a user would enter a sexually explicit site by accident.16 Unlike communications received by radio or television, "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended." 17Systems have been developed to help parents control the material that may be available on a home computer with In-13 Ibid. (finding 85).14Id., at 848 (finding 117). 15Id., at 844-845 (finding 88). 16 Ibid.17Id., at 845 (finding 89).855ternet access. A system may either limit a computer's access to an approved list of sources that have been identified as containing no adult material, it may block designated inappropriate sites, or it may attempt to block messages containing identifiable objectionable features. "Although parental control software currently can screen for certain suggestive words or for known sexually explicit sites, it cannot now screen for sexually explicit images."18 Nevertheless, the evidence indicates that "a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available." 19Age VerificationThe problem of age verification differs for different uses of the Internet. The District Court categorically determined that there "is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms." 20 The Government offered no evidence that there was a reliable way to screen recipients and participants in such forums for18Id., at 842 (finding 72). 19 Ibid. (finding 73).2°Id., at 845 (finding 90): "An e-mail address provides no authoritative information about the addressee, who may use an e-mail .alias. or an anonymous remailer. There is also no universal or reliable listing of e-mail addresses and corresponding names or telephone numbers, and any such listing would be or rapidly become incomplete. For these reasons, there is no reliable way in many instances for a sender to know if the e-mail recipient is an adult or a minor. The difficulty of e-mail age verification is compounded for mail exploders such as listservs, which automatically send information to all e-mail addresses on a sender's list. Government expert Dr. Olsen agreed that no current technology could give a speaker assurance that only adults were listed in a particular mail exploder's mailing list."856age. Moreover, even if it were technologically feasible to block minors' access to newsgroups and chat rooms containing discussions of art, politics, or other subjects that potentially elicit "indecent" or "patently offensive" contributions, it would not be possible to block their access to that material and "still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent." 21Technology exists by which an operator of a Web site may condition access on the verification of requested information such as a credit card number or an adult password. Credit card verification is only feasible, however, either in connection with a commercial transaction in which the card is used, or by payment to a verification agency. U sing credit card possession as a surrogate for proof of age would impose costs on noncommercial Web sites that would require many of them to shut down. For that reason, at the time of the trial, credit card verification was "effectively unavailable to a substantial number of Internet content providers." 929 F. Supp., at 846 (finding 102). Moreover, the imposition of such a requirement "would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material." 22Commercial pornographic sites that charge their users for access have assigned them passwords as a method of age verification. The record does not contain any evidence concerning the reliability of these technologies. Even if passwords are effective for commercial purveyors of indecent material, the District Court found that an adult password requirement would impose significant burdens on noncommercial sites, both because they would discourage users from accessing their sites and because the cost of creating and21 Ibid. (finding 93).22Id., at 846 (finding 102).857maintaining such screening systems would be "beyond their reach." 23In sum, the District Court found:"Even if credit card verification or adult password verification were implemented, the Government presented no testimony as to how such systems could ensure that the user of the password or credit card is in fact over 18. The burdens imposed by credit card verification and adult password verification systems make them effectively unavailable to a substantial number of Internet content providers." Ibid. (finding 107).IIThe Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, was an unusually important legislative enactment. As stated on the first of its 103 pages, its primary purpose was to reduce regulation and encourage "the rapid deployment of new telecommunications technologies." The major components of the statute have nothing to do with the Internet; they were designed to promote competition in the local telephone service market, the multichannel video mar-23Id., at 847 (findings 104-106):"At least some, if not almost all, non-commercial organizations, such as the ACLU, Stop Prisoner Rape or Critical Path AIDS Project, regard charging listeners to access their speech as contrary to their goals of making their materials available to a wide audience free of charge."There is evidence suggesting that adult users, particularly casual Web browsers, would be discouraged from retrieving information that required use of a credit card or password. Andrew Anker testified that HotWired has received many complaints from its members about HotWired's registration system, which requires only that a member supply a name, e-mail address and self-created password. There is concern by commercial content providers that age verification requirements would decrease advertising and revenue because advertisers depend on a demonstration that the sites are widely available and frequently visited."858ket, and the market for over-the-air broadcasting. The Act includes seven Titles, six of which are the product of extensive committee hearings and the subject of discussion in Reports prepared by Committees of the Senate and the House of Representatives. By contrast, Title V-known as the "Communications Decency Act of 1996" (CDA)-contains provisions that were either added in executive committee after the hearings were concluded or as amendments offered during floor debate on the legislation. An amendment offered in the Senate was the source of the two statutory provisions challenged in this case.24 They are informally de-24 See Exon Amendment No. 1268, 141 Congo Rec. 15536 (1995). See also id., at 15505. This amendment, as revised, became § 502 of the Telecommunications Act of 1996, 110 Stat. 133, 47 U. S. C. §§ 223(a)-(e) (1994 ed., Supp. II). Some Members of the House of Representatives opposed the Exon Amendment because they thought it "possible for our parents now to child-proof the family computer with these products available in the private sector." They also thought the Senate's approach would "involve the Federal Government spending vast sums of money trying to define elusive terms that are going to lead to a flood of legal challenges while our kids are unprotected." These Members offered an amendment intended as a substitute for the Exon Amendment, but instead enacted as an additional section of the Act entitled "Online Family Empowerment." See 110 Stat. 137, 47 U. S. C. §230 (1994 ed., Supp. II); 141 Congo Rec. 27881 (1995). No hearings were held on the provisions that became law. See S. Rep. No. 104-23, p. 9 (1995). After the Senate adopted the Exon Amendment, however, its Judiciary Committee did conduct a one-day hearing on "Cyberporn and Children." In his opening statement at that hearing, Senator Leahy observed:"It really struck me in your opening statement when you mentioned, Mr. Chairman, that it is the first ever hearing, and you are absolutely right. And yet we had a major debate on the floor, passed legislation overwhelmingly on a subject involving the Internet, legislation that could dramatically change-some would say even wreak havoc-on the Internet. The Senate went in willy-nilly, passed legislation, and never once had a hearing, never once had a discussion other than an hour or so on the floor." Cyberporn and Children: The Scope of the Problem, The State of the Technology, and the Need for Congressional Action, Hearing on S. 892 before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 7-8 (1995).859scribed as the "indecent transmission" provision and the "patently offensive display" provision.25The first, 47 U. s. C. § 223(a) (1994 ed., Supp. II), prohibits the knowing transmission of obscene or indecent messages to any recipient under 18 years of age. It provides in pertinent part:"(a) Whoever-"(1) in interstate or foreign communications-"(B) by means of a telecommunications device knowingly-"(i) makes, creates, or solicits, and "(ii) initiates the transmission of,"any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;"(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity,"shall be fined under Title 18, or imprisoned not more than two years, or both."The second provision, § 223(d), prohibits the knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age. It provides:25 Although the Government and the dissent break § 223(d)(1) into two separate "patently offensive" and "display" provisions, we follow the convention of both parties below, as well as the District Court's order and opinion, in describing § 223(d)(1) as one provision.860"(d) Whoever-"(1) in interstate or foreign communications knowingly-"(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or"(B) uses any interactive computer service to display in a manner available to a person under 18 years of age,"any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or"(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity,"shall be fined under Title 18, or imprisoned not more than two years, or both."The breadth of these prohibitions is qualified by two affirmative defenses. See § 223(e)(5).26 One covers those who take "good faith, reasonable, effective, and appropriate actions" to restrict access by minors to the prohibited communications. § 223(e)(5)(A). The other covers those who26 In full, § 223(e)(5) provides:"(5) It is a defense to a prosecution under subsection (a)(l)(B) or (d) of this section, or under subsection (a)(2) of this section with respect to the use of a facility for an activity under subsection (a)(l)(B) of this section that a person-"(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or"(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number."861restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or code. § 223(e)(5)(B).IIIOn February 8, 1996, immediately after the President signed the statute, 20 plaintiffs 27 filed suit against the Attorney General of the United States and the Department of Justice challenging the constitutionality of §§ 223(a)(1) and 223(d). A week later, based on his conclusion that the term "indecent" was too vague to provide the basis for a criminal prosecution, District Judge Buckwalter entered a temporary restraining order against enforcement of § 223(a)(1)(B)(ii) insofar as it applies to indecent communications. A second suit was then filed by 27 additional plaintiffs,2S the two cases27 American Civil Liberties Union; Human Rights Watch; Electronic Privacy Information Center; Electronic Frontier Foundation; Journalism Education Association; Computer Professionals for Social Responsibility; N ational Writers Union; Clarinet Communications Corp.; Institute for Global Communications; Stop Prisoner Rape; AIDS Education Global Information System; Bibliobytes; Queer Resources Directory; Critical Path AIDS Project, Inc.; Wildcat Press, Inc.; Declan McCullagh dba Justice on Campus; Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page; Jonathan Wallace dba The Ethical Spectacle; and Planned Parenthood Federation of America, Inc.28 American Library Association; America Online, Inc.; American Booksellers Association, Inc.; American Booksellers Foundation for Free Expression; American Society of Newspaper Editors; Apple Computer, Inc.; Association of American Publishers, Inc.; Association of Publishers, Editors and Writers; Citizens Internet Empowerment Coalition; Commercial Internet Exchange Association; CompuServe Incorporated; Families Against Internet Censorship; Freedom to Read Foundation, Inc.; Health Sciences Libraries Consortium; Hotwired Ventures LLC; Interactive Digital Software Association; Interactive Services Association; Magazine Publishers of America; Microsoft Corporation; The Microsoft Network, L. L. C.; National Press Photographers Association; Netcom On-Line Communication Services, Inc.; Newspaper Association of America; Opnet, Inc.; Prodigy Services Company; Society of Professional Journalists; and Wired Ventures, Ltd.862were consolidated, and a three-judge District Court was convened pursuant to § 561 of the CDA.29 After an evidentiary hearing, that court entered a preliminary injunction against enforcement of both of the challenged provisions. Each of the three judges wrote a separate opinion, but their judgment was unanimous.Chief Judge Sloviter doubted the strength of the Government's interest in regulating "the vast range of online material covered or potentially covered by the CDA," but acknowledged that the interest was "compelling" with respect to some of that material. 929 F. Supp., at 853. She concluded, nonetheless, that the statute "sweeps more broadly than necessary and thereby chills the expression of adults" and that the terms "patently offensive" and "indecent" were "inherently vague." Id., at 854. She also determined that the affirmative defenses were not "technologically or economically feasible for most providers," specifically considering and rejecting an argument that providers could avoid liability by "tagging" their material in a manner that would allow potential readers to screen out unwanted transmissions. Id., at 856. Chief Judge Sloviter also rejected the Government's suggestion that the scope of the statute could be narrowed by construing it to apply only to commercial pornographers. Id., at 854-855.Judge Buckwalter concluded that the word "indecent" in § 223(a)(1)(B) and the terms "patently offensive" and "in context" in § 223(d)(1) were so vague that criminal enforcement of either section would violate the "fundamental constitutional principle" of "simple fairness," id., at 861, and the specific protections of the First and Fifth Amendments, id., at 858. He found no statutory basis for the Government's argument that the challenged provisions would be applied only to "pornographic" materials, noting that, unlike obscenity, "indecency has not been defined to exclude works of serious literary, artistic, political or scientific value." Id., at 863.29110 Stat. 142-143, note following 47 U. S. C. §223 (1994 ed., Supp. II).863Moreover, the Government's claim that the work must be considered patently offensive "in context" was itself vague because the relevant context might "refer to, among other things, the nature of the communication as a whole, the time of day it was conveyed, the medium used, the identity of the speaker, or whether or not it is accompanied by appropriate warnings." Id., at 864. He believed that the unique nature of the Internet aggravated the vagueness of the statute. Id., at 865, n. 9.Judge Dalzell's review of "the special attributes of Internet communication" disclosed by the evidence convinced him that the First Amendment denies Congress the power to regulate the content of protected speech on the Internet. Id., at 867. His opinion explained at length why he believed the CDA would abridge significant protected speech, particularly by noncommercial speakers, while "[p]erversely, commercial pornographers would remain relatively unaffected." Id., at 879. He construed our cases as requiring a "medium-specific" approach to the analysis of the regulation of mass communication, id., at 873, and concluded that the Internet-as "the most participatory form of mass speech yet developed," id., at 883-is entitled to "the highest protection from governmental intrusion," ibid.3030 See also 929 F. Supp., at 877: "Four related characteristics of Internet communication have a transcendent importance to our shared holding that the CDA is unconstitutional on its face. We explain these characteristics in our Findings of fact above, and I only rehearse them briefly here. First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers." According to Judge Dalzell, these characteristics and the rest of the District Court's findings "lead to the conclusion that Congress may not regulate indecency on the Internet at all." Ibid. Because appellees do not press this argument before this Court, we do not consider it. Appellees also do not dispute that the Government generally has a compelling interest in protecting minors from "indecent" and "patently offensive" speech.864The judgment of the District Court enjoins the Government from enforcing the prohibitions in § 223(a)(1)(B) insofar as they relate to "indecent" communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of §§ 223(d)(1) and (2) is unqualified because those provisions contain no separate reference to obscenity or child pornography.The Government appealed under the CDA's special review provisions, § 561, 110 Stat. 142-143, and we noted probable jurisdiction, see 519 U. S. 1025 (1996). In its appeal, the Government argues that the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague. While we discuss the vagueness of the CDA because of its relevance to the First Amendment overbreadth inquiry, we conclude that the judgment should be affirmed without reaching the Fifth Amendment issue. We begin our analysis by reviewing the principal authorities on which the Government relies. Then, after describing the overbreadth of the CDA, we consider the Government's specific contentions, including its submission that we save portions of the statute either by severance or by fashioning judicial limitations on the scope of its coverage.IVIn arguing for reversal, the Government contends that the CDA is plainly constitutional under three of our prior decisions: (1) Ginsberg v. New York, 390 U. S. 629 (1968); (2) FCC v. Pacifica Foundation, 438 U. S. 726 (1978); and (3) Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). A close look at these cases, however, raises-rather than relievesdoubts concerning the constitutionality of the CDA.In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling to minors under 17 years of age material that was considered obscene as to them even if not obscene as to adults. We rejected the defendant's broad865submission that "the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend on whether the citizen is an adult or a minor." 390 U. S., at 636. In rejecting that contention, we relied not only on the State's independent interest in the well-being of its youth, but also on our consistent recognition of the principle that "the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society." 31In four important respects, the statute upheld in Ginsberg was narrower than the CDA. First, we noted in Ginsberg that "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children." Id., at 639. Under the CDA, by contrast, neither the parents' consent-nor even their participationin the communication would avoid the application of the statute.32 Second, the New York statute applied only to commercial transactions, id., at 647, whereas the CDA contains no such limitation. Third, the New York statute cabined its definition of material that is harmful to minors with the requirement that it be "utterly without redeeming social importance for minors." Id., at 646. The CDA fails to provide us with any definition of the term "indecent" as used in § 223(a)(1) and, importantly, omits any requirement that the "patently offensive" material covered by § 223(d) lack serious literary, artistic, political, or scientific value. Fourth, the New York statute defined a minor as a person under the age31390 U. S., at 639. We quoted from Prince v. Massachusetts, 321 U. S. 158, 166 (1944): "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."32 Given the likelihood that many e-mail transmissions from an adult to a minor are conversations between family members, it is therefore incorrect for the partial dissent to suggest that the provisions of the CDA, even in this narrow area, "are no different from the law we sustained in Ginsberg." Post, at 892.866of 17, whereas the CDA, in applying to all those under 18 years, includes an additional year of those nearest majority.In Pacifica, we upheld a declaratory order of the Federal Communications Commission, holding that the broadcast of a recording of a 12-minute monologue entitled "Filthy Words" that had previously been delivered to a live audience "could have been the subject of administrative sanctions." 438 U. S., at 730 (internal quotation marks omitted). The Commission had found that the repetitive use of certain words referring to excretory or sexual activities or organs "in an afternoon broadcast when children are in the audience was patently offensive" and concluded that the monologue was indecent "as broadcast." Id., at 735. The respondent did not quarrel with the finding that the afternoon broadcast was patently offensive, but contended that it was not "indecent" within the meaning of the relevant statutes because it contained no prurient appeal. After rejecting respondent's statutory arguments, we confronted its two constitutional arguments: (1) that the Commission's construction of its authority to ban indecent speech was so broad that its order had to be set aside even if the broadcast at issue was unprotected; and (2) that since the recording was not obscene, the First Amendment forbade any abridgment of the right to broadcast it on the radio.In the portion of the lead opinion not joined by Justices Powell and Blackmun, the plurality stated that the First Amendment does not prohibit all governmental regulation that depends on the content of speech. Id., at 742-743. Accordingly, the availability of constitutional protection for a vulgar and offensive monologue that was not obscene depended on the context of the broadcast. Id., at 744-748. Relying on the premise that "of all forms of communication" broadcasting had received the most limited First Amendment protection, id., at 748-749, the Court concluded that the ease with which children may obtain access to broadcasts,867"coupled with the concerns recognized in Ginsberg," justified special treatment of indecent broadcasting. Id., at 749-750.As with the New York statute at issue in Ginsberg, there are significant differences between the order upheld in Pacifica and the CDA. First, the order in Pacifica, issued by an agency that had been regulating radio stations for decades, targeted a specific broadcast that represented a rather dramatic departure from traditional program content in order to designate when-rather than whether-it would be permissible to air such a program in that particular medium. The CDA's broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet. Second, unlike the CDA, the Commission's declaratory order was not punitive; we expressly refused to decide whether the indecent broadcast "would justify a criminal prosecution." 438 U. S., at 750. Finally, the Commission's order applied to a medium which as a matter of history had "received the most limited First Amendment protection," id., at 748, in large part because warnings could not adequately protect the listener from unexpected program content. The Internet, however, has no comparable history. Moreover, the District Court found that the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.In Renton, we upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods. The ordinance was aimed, not at the content of the films shown in the theaters, but rather at the "secondary effects" -such as crime and deteriorating property values-that these theaters fostered: "'It is thee] secondary effect which these zoning ordinances attempt to avoid, not the dissemination of "offensive" speech.''' 475 U. S., at 49 (quoting Young v. American Mini Theatres, Inc., 427 U. S. 50, 71, n. 34 (1976)). According to the Government, the CDA is constitutional be-868cause it constitutes a sort of "cyberzoning" on the Internet. But the CDA applies broadly to the entire universe of cyberspace. And the purpose of the CDA is to protect children from the primary effects of "indecent" and "patently offensive" speech, rather than any "secondary" effect of such speech. Thus, the CDA is a content-based blanket restriction on speech, and, as such, cannot be "properly analyzed as a form of time, place, and manner regulation." 475 U. S., at 46. See also Boos v. Barry, 485 U. S. 312, 321 (1988) ("Regulations that focus on the direct impact of speech on its audience" are not properly analyzed under Renton); Forsyth County v. Nationalist Movement, 505 U. S. 123, 134 (1992) ("Listeners' reaction to speech is not a content-neutral basis for regulation").These precedents, then, surely do not require us to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions.vIn Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975), we observed that "[e]ach medium of expression ... may present its own problems." Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the Court relied on the history of extensive Government regulation of the broadcast medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994); and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989).Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic forums of the Internet been subject to the type869of government supervision and regulation that has attended the broadcast industry.33 Moreover, the Internet is not as "invasive" as radio or television. The District Court specifically found that "[c]ommunications over the Internet do not 'invade' an individual's home or appear on one's computer screen unbidden. Users seldom encounter content 'by accident.' " 929 F. Supp., at 844 (finding 88). It also found that "[a]lmost all sexually explicit images are preceded by warnings as to the content," and cited testimony that" 'odds are slim' that a user would come across a sexually explicit sight by accident." Ibid.We distinguished Pacifica in Sable, 492 U. S., at 128, on just this basis. In Sable, a company engaged in the business of offering sexually oriented prerecorded telephone messages (popularly known as "dial-a-porn") challenged the constitutionality of an amendment to the Communications Act of 1934 that imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. We held that the statute was constitutional insofar as it applied to obscene messages but invalid as applied to indecent messages. In attempting to justify the complete ban and criminalization of indecent commercial telephone messages, the Government relied on Pacifica, arguing that the ban was necessary to prevent children from gaining access to such messages. We agreed that "there is a compelling interest in protecting the physical and psychological well-being of minors" which extended to shielding them from indecent messages that are not obscene by adult standards, 492 U. S., at33 Cf. Pacifica Foundation v. FCC, 556 F.2d 9, 36 (CADC 1977) (LevanthaI, J., dissenting), rev'd, FCC v. Pacifica Foundation, 438 U. S. 726 (1978). When Pacifica was decided, given that radio stations were allowed to operate only pursuant to federal license, and that Congress had enacted legislation prohibiting licensees from broadcasting indecent speech, there was a risk that members of the radio audience might infer some sort of official or societal approval of whatever was heard over the radio, see 556 F. 2d, at 37, n. 18. No such risk attends messages received through the Internet, which is not supervised by any federal agency.870126, but distinguished our "emphatically narrow holding" in Pacifica because it did not involve a complete ban and because it involved a different medium of communication, id., at 127. We explained that "the dial-it medium requires the listener to take affirmative steps to receive the communication." Id., at 127-128. "Placing a telephone call," we continued, "is not the same as turning on a radio and being taken by surprise by an indecent message." Id., at 128.Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that "[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999."34 This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought." 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.VIRegardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment. For instance, each of the two parts34 Juris. Statement 3 (citing 929 F. Supp., at 831 (finding 3)).871of the CDA uses a different linguistic form. The first uses the word "indecent," 47 U. s. C. § 223(a) (1994 ed., Supp. II), while the second speaks of material that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs," § 223(d). Given the absence of a definition of either term,35 this difference in language will provoke uncertainty among speakers about how the two standards relate to each other36 and just what they mean.37 Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality, the First Amendment issues raised by the Appendix to our Pacifica opinion, or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials.The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises35 "Indecent" does not benefit from any textual embellishment at all."Patently offensive" is qualified only to the extent that it involves "sexual or excretory activities or organs" taken "in context" and "measured by contemporary community standards."36 See Gozlon-Peretz v. United States, 498 U. S. 395, 404 (1991) ("[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 and exclusion" (internal quotation marks omitted)).37 The statute does not indicate whether the "patently offensive" and "indecent" determinations should be made with respect to minors or the population as a whole. The Government asserts that the appropriate standard is "what is suitable material for minors." Reply Brief for Appellants 18, n. 13 (citing Ginsberg v. New York, 390 U. S. 629, 633 (1968)). But the Conferees expressly rejected amendments that would have imposed such a "harmful to minors" standard. See S. Conf. Rep. No. 104-230, p. 189 (1996) (S. Conf. Rep.), 142 Congo Rec. H1145, H1165-H1166 (Feb. 1, 1996). The Conferees also rejected amendments that would have limited the proscribed materials to those lacking redeeming value. See ibid.872special First Amendment concerns because of its obvious chilling effect on free speech. See, e. g., Gentile v. State Bar of Nev., 501 U. S. 1030, 1048-1051 (1991). Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. See, e. g., Dombrowski v. Pfister, 380 U. S. 479, 494 (1965). As a practical matter, this increased deterrent effect, coupled with the "risk of discriminatory enforcement" of vague regulations, poses greater First Amendment concerns than those implicated by the civil regulation reviewed in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996).The Government argues that the statute is no more vague than the obscenity standard this Court established in Miller v. California, 413 U. S. 15 (1973). But that is not so. In Miller, this Court reviewed a criminal conviction against a commercial vendor who mailed brochures containing pictures of sexually explicit activities to individuals who had not requested such materials. Id., at 18. Having struggled for some time to establish a definition of obscenity, we set forth in Miller the test for obscenity that controls to this day:"(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id., at 24 (internal quotation marks and citations omitted).873Because the CDA's "patently offensive" standard (and, we assume, arguendo, its synonymous "indecent" standard) is one part of the three-prong Miller test, the Government reasons, it cannot be unconstitutionally vague.The Government's assertion is incorrect as a matter of fact. The second prong of the Miller test-the purportedly analogous standard-contains a critical requirement that is omitted from the CDA: that the proscribed material be "specifically defined by the applicable state law." This requirement reduces the vagueness inherent in the open-ended term "patently offensive" as used in the CDA. Moreover, the Miller definition is limited to "sexual conduct," whereas the CDA extends also to include (1) "excretory activities" as well as (2) "organs" of both a sexual and excretory nature.The Government's reasoning is also flawed. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing by itself, is not vague.38 Each of Miller's additional two prongs-(l) that, taken as a whole, the material appeal to the "prurient" interest, and (2) that it "lac[k] serious literary, artistic, political, or scientific value"-critically limits the uncertain sweep of the obscenity definition. The second requirement is particularly important because, unlike the "patently offensive" and "prurient interest" criteria, it is not judged by contemporary community standards. See Pope v. Illinois, 481 U. S. 497, 500 (1987). This "societal value" requirement, absent in the CDA, allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value. The Government's contention that courts will be able to give such legal limitations to the CDA's standards is belied by Miller's own rationale for having juries determine whether material38 Even though the word "trunk," standing alone, might refer to luggage, a swimming suit, the base of a tree, or the long nose of an animal, its meaning is clear when it is one prong of a three-part description of a species of gray animals.874is "patently offensive" according to community standards: that such questions are essentially ones of fact.39In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA's burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute.VIIWe are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.In evaluating the free speech rights of adults, we have made it perfectly clear that "[s]exual expression which is indecent but not obscene is protected by the First Amendment." Sable, 492 U. S., at 126. See also Carey v. Population Services Int'l, 431 U. S. 678, 701 (1977) ("[W]here obscenity is not involved, we have consistently held that the39413 U. S., at 30 (Determinations of "what appeals to the 'prurient interest' or is 'patently offensive' ... are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists"). The CDA, which implements the "contemporary community standards" language of Miller, thus conflicts with the Conferees' own assertion that the CDA was intended "to establish a uniform national standard of content regulation." S. Conf. Rep., at 191.875fact that protected speech may be offensive to some does not justify its suppression"). Indeed, Pacifica itself admonished that "the fact that society may find speech offensive is not a sufficient reason for suppressing it." 438 U. S., at 745.It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. See Ginsberg, 390 U. S., at 639; Pacifica, 438 U. S., at 749. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult population ... to ... only what is fit for children." Denver, 518 U. S., at 759 (internal quotation marks omitted) (quoting Sable, 492 U. S., at 128).40 "[R]egardless of the strength of the government's interest" in protecting children, "[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 74-75 (1983).The District Court was correct to conclude that the CDA effectively resembles the ban on "dial-a-porn" invalidated in Sable. 929 F. Supp., at 854. In Sable, 492 U. S., at 129, this Court rejected the argument that we should defer to the congressional judgment that nothing less than a total ban would be effective in preventing enterprising youngsters from gaining access to indecent communications. Sable thus made clear that the mere fact that a statutory regulation of speech was enacted for the important purpose of protecting children from exposure to sexually explicit material does not foreclose inquiry into its validity.41 As we pointed out last40 Accord, Butler v. Michigan, 352 U. S. 380, 383 (1957) (ban on sale to adults of books deemed harmful to children unconstitutional); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989) (ban on "dial-aporn" messages unconstitutional); Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 73 (1983) (ban on mailing of unsolicited advertisement for contraceptives unconstitutional).41 The lack of legislative attention to the statute at issue in Sable suggests another parallel with this case. Compare 492 U. S., at 129-130 ("[A]side from conc1usory statements during the debates by proponents of876Term, that inquiry embodies an "overarching commitment" to make sure that Congress has designed its statute to accomplish its purpose "without imposing an unnecessarily great restriction on speech." Denver, 518 U. S., at 741.In arguing that the CDA does not so diminish adult communication, the Government relies on the incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult-to-adult communication. The findings of the District Court make clear that this premise is untenable. Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will likely view it. Knowledge that, for instance, one or more members of a 100-person chat group will be a minor-and therefore that it would be a crime to send the group an indecent message-would surely burden communication among adults.42The District Court found that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults. The Court found no effective way to determine the age of a user who is accessing material through e-mail, mail exploders, newsgroups, or chat rooms. 929 F. Supp., at 845 (findings 90-94). As a practical matter, the Court also foundthe bill, as well as similar assertions in hearings on a substantially identical bill the year before, ... the congressional record presented to us contains no evidence as to how effective or ineffective the FCC's most recent regulations were or might prove to be .... No Congressman or Senator purported to present a considered judgment with respect to how often or to what extent minors could or would circumvent the rules and have access to dial-a-porn messages" (footnote omitted)), with n. 24, supra.42 The Government agrees that these provisions are applicable whenever "a sender transmits a message to more than one recipient, knowing that at least one of the specific persons receiving the message is a minor." Opposition to Motion to Affirm and Reply to Juris. Statement 4-5, n. 1.877that it would be prohibitively expensive for noncommercialas well as some commercial-speakers who have Web sites to verify that their users are adults. Id., at 845-848 (findings 95-116).43 These limitations must inevitably curtail a significant amount of adult communication on the Internet. By contrast, the District Court found that "[dJespite its limitations, currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available." Id., at 842 (finding 73) (emphases added).The breadth of the CDA's coverage is wholly unprecedented. Unlike the regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities. Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general, undefined terms "indecent" and "patently offensive" cover large amounts of nonpornographic material with serious educational or other value.44 Moreover, the "community standards" criterion as applied to the Internet means that any communication avail-43 The Government asserts that "[t]here is nothing constitutionally suspect about requiring commercial Web site operators ... to shoulder the modest burdens associated with their use." Brief for Appellants 35. As a matter of fact, however, there is no evidence that a "modest burden" would be effective.44 Transmitting obscenity and child pornography, whether via the Internet or other means, is already illegal under federal law for both adults and juveniles. See 18 U. S. C. §§ 1464-1465 (criminalizing obscenity); § 2251 (criminalizing child pornography). In fact, when Congress was considering the CDA, the Government expressed its view that the law was unnecessary because existing laws already authorized its ongoing efforts to prosecute obscenity, child pornography, and child solicitation. See 141 Congo Rec. 16026 (1995) (letter from Kent Markus, Acting Assistant Attorney General, U. S. Department of Justice, to Sen. Leahy).878able to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.45 The regulated subject matter includes any of the seven "dirty words" used in the Pacifica monologue, the use of which the Government's expert acknowledged could constitute a felony. See Olsen Testimony, Tr. Vol. V, 53:1654:10. It may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library.For the purposes of our decision, we need neither accept nor reject the Government's submission that the First Amendment does not forbid a blanket prohibition on all "indecent" and "patently offensive" messages communicated to a 17-year-old-no matter how much value the message may contain and regardless of parental approval. It is at least clear that the strength of the Government's interest in protecting minors is not equally strong throughout the coverage of this broad statute. Under the CDA, a parent allowing her 17-year-old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term. See 47 U. S. C. § 223(a)(2) (1994 ed., Supp. II). Similarly, a parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community found the material "indecent" or "patently offensive," if the college town's community thought otherwise.45 Citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), among other cases, appellees offer an additional reason why, in their view, the CDA fails strict scrutiny. Because so much sexually explicit content originates overseas, they argue, the CDA cannot be "effective." Brief for Appellees American Library Association et al. 33-34. This argument raises difficult issues regarding the intended, as well as the permissible scope of, extraterritorial application of the CDA. We find it unnecessary to address those issues to dispose of this case.879The breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the CDA. It has not done so. The arguments in this Court have referred to possible alternatives such as requiring that indecent material be "tagged" in a way that facilitates parental control of material coming into their homes, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet-such as commercial Web sites-differently from others, such as chat rooms. Particularly in the light of the absence of any detailed findings by the Congress, or even hearings addressing the special problems of the CDA, we are persuaded that the CDA is not narrowly tailored if that requirement has any meaning at all.VIIIIn an attempt to curtail the CDA's facial overbreadth, the Government advances three additional arguments for sustaining the Act's affirmative prohibitions: (1) that the CDA is constitutional because it leaves open ample "alternative channels" of communication; (2) that the plain meaning of the CDA's "knowledge" and "specific person" requirement significantly restricts its permissible applications; and (3) that the CDA's prohibitions are "almost always" limited to material lacking redeeming social value.The Government first contends that, even though the CDA effectively censors discourse on many of the Internet's modalities-such as chat groups, newsgroups, and mail exploders-it is nonetheless constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted speech on the World Wide Web. Brief for Appellants 39. This argument is unpersuasive because the CDA regulates speech on the basis of its content. A "time, place, and manner" analysis is therefore inapplicable. See Consolidated Edison Co. of N. Y. v. Public Servo Comm'n of N. Y.,880447 U. S. 530, 536 (1980). It is thus immaterial whether such speech would be feasible on the Web (which, as the Government's own expert acknowledged, would cost up to $10,000 if the speaker's interests were not accommodated by an existing Web site, not including costs for data base management and age verification). The Government's position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books. In invalidating a number of laws that banned leafletting on the streets regardless of their content, we explained that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State (Town of Irvington), 308 U. S. 147, 163 (1939).The Government also asserts that the "knowledge" requirement of both §§ 223(a) and (d), especially when coupled with the "specific child" element found in § 223(d), saves the CDA from overbreadth. Because both sections prohibit the dissemination of indecent messages only to persons known to be under 18, the Government argues, it does not require transmitters to "refrain from communicating indecent material to adults; they need only refrain from disseminating such materials to persons they know to be under 18." Brief for Appellants 24. This argument ignores the fact that most Internet forums-including chat rooms, newsgroups, mail exploders, and the Web-are open to all comers. The Government's assertion that the knowledge requirement somehow protects the communications of adults is therefore untenable. Even the strongest reading of the "specific person" requirement of § 223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child-a "specific person ... under 18 years of age," 47 U. S. C. §223(d)(1)(A) (1994 ed., Supp. H)-would be present.881Finally, we find no textual support for the Government's submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's "patently offensive" and "indecent" prohibitions. See also n. 37, supra.IXThe Government's three remaining arguments focus on the defenses provided in § 223(e)(5).46 First, relying on the "good faith, reasonable, effective, and appropriate actions" provision, the Government suggests that "tagging" provides a defense that saves the constitutionality of the CDA. The suggestion assumes that transmitters may encode their indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriate software. It is the requirement that the good-faith action must be "effective" that makes this defense illusory. The Government recognizes that its proposed screening software does not currently exist. Even if it did, there is no way to know whether a potential recipient will actually block the encoded material. Without the impossible knowledge that every guardian in America is screening for the "tag," the transmitter could not reasonably rely on its action to be "effective."For its second and third arguments concerning defenseswhich we can consider together-the Government relies on the latter half of § 223(e)(5), which applies when the transmitter has restricted access by requiring use of a verified credit card or adult identification. Such verification is not only technologically available but actually is used by commercial providers of sexually explicit material. These providers, therefore, would be protected by the defense. Under the findings of the District Court, however, it is not economically feasible for most noncommercial speakers to employ such verification. Accordingly, this defense would not signifi-46 For the full text of § 223(e )(5), see n. 26, supra.882cantly narrow the statute's burden on noncommercial speech. Even with respect to the commercial pornographers that would be protected by the defense, the Government failed to adduce any evidence that these verification techniques actually preclude minors from posing as adults.47 Given that the risk of criminal sanctions "hovers over each content provider, like the proverbial sword of Damocles,"48 the District Court correctly refused to rely on unproven future technology to save the statute. The Government thus failed to prove that the proffered defense would significantly reduce the heavy burden on adult speech produced by the prohibition on offensive displays.We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of "narrow tailoring" that will save an otherwise patently invalid unconstitutional provision. In Sable, 492 U. S., at 127, we remarked that the speech restriction at issue there amounted to "'burn[ing] the house to roast the pig.'" The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community.XAt oral argument, the Government relied heavily on its ultimate fall-back position: If this Court should conclude that the CDA is insufficiently tailored, it urged, we should save the statute's constitutionality by honoring the severability clause, see 47 U. S. C. § 608, and construing nonseverable terms narrowly. In only one respect is this argument acceptable.A severability clause requires textual provisions that can be severed. We will follow § 608's guidance by leaving con-47 Thus, ironically, this defense may significantly protect commercial purveyors of obscene postings while providing little (or no) benefit for transmitters of indecent messages that have significant social or artistic value. 48929 F. Supp., at 855-856.883stitutional textual elements of the statute intact in the one place where they are, in fact, severable. The "indecency" provision, 47 U. S. C. § 223(a) (1994 ed., Supp. II), applies to "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent." (Emphasis added.) Appellees do not challenge the application of the statute to obscene speech, which, they acknowledge, can be banned totally because it enjoys no First Amendment protection. See Miller, 413 U. S., at 18. As set forth by the statute, the restriction of "obscene" material enjoys a textual manifestation separate from that for "indecent" material, which we have held unconstitutional. Therefore, we will sever the term "or indecent" from the statute, leaving the rest of § 223(a) standing. In no other respect, however, can § 223(a) or § 223(d) be saved by such a textual surgery.The Government also draws on an additional, less traditional aspect of the CDA's severability clause, 47 U. S. C. § 608, which asks any reviewing court that holds the statute facially unconstitutional not to invalidate the CDA in application to "other persons or circumstances" that might be constitutionally permissible. It further invokes this Court's admonition that, absent "countervailing considerations," a statute should "be declared invalid to the extent it reaches too far, but otherwise left intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503-504 (1985). There are two flaws in this argument.First, the statute that grants our jurisdiction for this expedited review, § 561 of the Telecommunications Act of 1961, note following 47 U. S. C. § 223 (1994 ed., Supp. II), limits that jurisdictional grant to actions challenging the CDA "on its face." Consistent with § 561, the plaintiffs who brought this suit and the three-judge panel that decided it treated it as a facial challenge. We have no authority, in this particular posture, to convert this litigation into an "as-applied" challenge. Nor, given the vast array of plaintiffs, the range of their expressive activities, and the vagueness of the stat-884ute, would it be practicable to limit our holding to a judicially defined set of specific applications.Second, one of the "countervailing considerations" mentioned in Brockett is present here. In considering a facial challenge, this Court may impose a limiting construction on a statute only if it is "readily susceptible" to such a construction. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397 (1988). See also Erznoznik v. Jacksonville, 422 U. S. 205, 216 (1975) ("readily subject" to narrowing construction). The open-ended character of the CDA provides no guidance whatever for limiting its coverage.This case is therefore unlike those in which we have construed a statute narrowly because the text or other source of congressional intent identified a clear line that this Court could draw. Cf., e. g., Brockett, 472 U. S., at 504-505 (invalidating obscenity statute only to the extent that word "lust" was actually or effectively excised from statute); United States v. Grace, 461 U. S. 171, 180-183 (1983) (invalidating federal statute banning expressive displays only insofar as it extended to public sidewalks when clear line could be drawn between sidewalks and other grounds that comported with congressional purpose of protecting the building, grounds, and people therein). Rather, our decision in United States v. Treasury Employees, 513 U. S. 454, 479, n. 26 (1995), is applicable. In that case, we declined to "dra[w] one or more lines between categories of speech covered by an overly broad statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn" because doing so "involves a far more serious invasion of the legislative domain."49 This Court "will not rewrite a ... law49 As this Court long ago explained: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government." United States v. Reese, 92 U. S. 214, 221 (1876). In part because of these885to conform it to constitutional requirements." American Booksellers, 484 U. S., at 397.50XIIn this Court, though not in the District Court, the Government asserts that-in addition to its interest in protecting children-its "[e]qually significant" interest in fostering the growth of the Internet provides an independent basis for upholding the constitutionality of the CDA. Brief for Appellants 19. The Government apparently assumes that the unregulated availability of "indecent" and "patently offensive" material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material.We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.For the foregoing reasons, the judgment of the District Court is affirmed.It is so ordered | OCTOBER TERM, 1996SyllabusRENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL. v. AMERICAN CIVIL LIBERTIES UNION ET AL.APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIANo. 96-511. Argued March 19, 1997-Decided June 26, 1997Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet, an international network of interconnected computers that enables millions of people to communicate with one another in "cyberspace" and to access vast amounts of information from around the world. Title 47 U. S. C. § 223(a)(I)(B)(ii) (1994 ed., Supp. II) criminalizes the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age. Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Mfirmative defenses are provided for those who take "good faith, ... effective ... actions" to restrict access by minors to the prohibited communications, § 223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, §223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of §§ 223(a)(I) and 223(d). After making extensive findings of fact, a three-judge District Court convened pursuant to the Act entered a preliminary injunction against enforcement of both challenged provisions. The court's judgment enjoins the Government from enforcing § 223(a)(I)(B)'s prohibitions insofar as they relate to "indecent" communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of § 223(d) is unqualified because that section contains no separate reference to obscenity or child pornography. The Government appealed to this Court under the Act's special review provisions, arguing that the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague.Held: The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the freedom of speech" protected by the First Amendment. Pp. 864-885.845(a) Although the CDA's vagueness is relevant to the First Amendment overbreadth inquiry, the judgment should be affirmed without reaching the Fifth Amendment issue. P. 864.(b) A close look at the precedents relied on by the GovernmentGinsberg v. New York, 390 U. S. 629; FCC v. Pacifica Foundation, 438 U. S. 726; and Renton v. Playtime Theatres, Inc., 475 U. S. 41-raises, rather than relieves, doubts about the CDA's constitutionality. The CDA differs from the various laws and orders upheld in those cases in many ways, including that it does not allow parents to consent to their children's use of restricted materials; is not limited to commercial transactions; fails to provide any definition of "indecent" and omits any requirement that "patently offensive" material lack socially redeeming value; neither limits its broad categorical prohibitions to particular times nor bases them on an evaluation by an agency familiar with the medium's unique characteristics; is punitive; applies to a medium that, unlike radio, receives full First Amendment protection; and cannot be properly analyzed as a form of time, place, and manner regulation because it is a content-based blanket restriction on speech. These precedents, then, do not require the Court to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions. Pp. 864-868.(c) The special factors recognized in some of the Court's cases as justifying regulation of the broadcast media-the history of extensive Government regulation of broadcasting, see, e. g., Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638; and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128-are not present in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet. Pp.868-870.(d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for First Amendment purposes. For instance, its use of the undefined terms "indecent" and "patently offensive" will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean. The vagueness of such a content-based regulation, see, e. g., Gentile v. State Bar of Nev., 501 U. S. 1030, coupled with its increased deterrent effect as a criminal statute, see, e. g., Dombrowski v. Pfister, 380 U. S. 479, raise special First Amendment concerns because of its obvious chilling effect on free speech. Contrary to the Government's argument, the CDA is not saved from vagueness by the fact that its "patently offensive" stand-846Full Text of Opinion |
335 | 1973_73-9 | MR. JUSTICE BLACKMUN delivered the opinion of the Court.A corporate taxpayer in 1957 issued $50 face value 5% sinking fund debentures in exchange for its outstanding $50 par 5% cumulative preferred shares. At the time, the preferred apparently had a fair market value f less than $50 per share. This case presents the question whether, under § 163(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 163(a), [Footnote 1] the taxpayer is entitled to an income tax deduction for amortizable debt discount claimed to be the difference between the face amount of the debentures and the preferred's value at the time of the exchange.IThe facts are stipulated. The respondent, National Alfalfa Dehydrating and Milling Company (hereinafter called "NAD" or the "taxpayer"), is a Delaware corporation organized in May, 1946. It has its principal office at Shawnee Mission, Kansas. It is engaged in the business of dehydrating and milling alfalfa.At its organization, NAD was authorized to issue $50 par cumulative preferred shares and $1 par common shares. The preferred was entitled to preferential dividends at the rate of 5% per annum and was redeemable, in whole or in part, at the discretion of the board of directors or through the operation of a sinking fund, at a stated, variable price which, in 1957, was $51 per share plus Page 417 U. S. 137 accrued dividends. The sinking fund provision required that 20% of net earnings (after the payment of the preferred's dividends) was to be set aside and employed for the redemption of preferred. Any shares so redeemed were to be retired, and could not be reissued. If there was a dividend arrearage, the preferred could not be purchased, redeemed, or otherwise acquired for value by the corporation unless the holders of 50% of the preferred shares consented, or unless NAD notified all preferred shareholders of its desire to purchase and invited tender offers. Upon voluntary liquidation, the preferred was entitled to $50 per share plus accrued dividends before any distribution was made to holders of the common shares.Prior to July 23, 1957, NAD had outstanding common shares and 47,059 preferred shares on which there were dividend arrearages of $10 per share. The preferred outstanding thus had an aggregate par value of $2,352,950 as of that date.On April 8, 1957, NAD's board of directors adopted resolutions [Footnote 2] "to effectuate a reorganization of the Company by way of recapitalization." App. 56. The plan proposed by the board had three steps: (1) an amendment of NAD's articles of incorporation to eliminate the preferred as of August 1, 1957, to increase the par value of the common from $1 to $3 and the number of shares of common authorized from 763,000 to 1,000,000, and to authorize the issue of warrants for the purchase of common shares; (2) the indentured issuance of $2,352,950 principal amount of 18-year 5% sinking fund debentures due July 1, 1975, with one $50 debenture to be exchanged for each share of outstanding $50 preferred; and (3) the issuance, to the holder of each share of preferred, of a Page 417 U. S. 138 warrant to purchase one-half share of common at $10 per share in lieu of the $10 dividend arrearage. The members of the board would have testified that the"principal business purpose behind the 1957 exchange of debentures for the preferred stock was to enable National Alfalfa to expand its eastern producing areas."Id. at 25.After the board had taken this action, NAD and Fidelity-Philadelphia Trust Company, as trustee, executed a trust indenture dated July 1, 1957, pursuant to which the aforementioned debentures were to be issued in exchange for NAD's outstanding preferred. [Footnote 3]Fidelity-Philadelphia Trust Company, on behalf of NAD, requested a ruling from the United States Treasury Department as to the federal income tax consequences of the plan. A responsive letter-ruling over the signature of the Chief, Reorganization and Dividend Branch, was forthcoming on May 29, 1957. The request had sought a ruling that all aspects of the plan would be tax-free. The ruling, however, was to the effect that the exchange of the $1 par common for $3 par common"will Page 417 U. S. 139 constitute a recapitalization and, therefore, a reorganization, within the meaning of section 368(a)(1)(E), of the Internal Revenue Code of 1954,"26 U.S.C. § 368(a)(1)(E), and that, as a result thereof, under § 354(a) of the Code, 26 U.S.C. § 354(a), no gain or loss would be recognized on that exchange by NAD or by its common shareholders. App. 20. The ruling went on to state,"Assuming but not determining that the 5% debenture bonds to be issued qualify as securities (create a genuine relationship of debtor and creditor), gain or loss will be recognized to the preferred stockholders [under § 302(a) of the Code, 26 U.S.C. § 302(a)] from the exchange"of the preferred and the dividend arrearage for the debentures and warrants. The gain or loss so to be recognized would be"measured by the difference between the cost or other adjusted basis of the preferred stock surrendered and the fair market values of the debentures and warrants received."App. 20-21.Shareholder approval of the plan proposed by the board was forthcoming in due course. Accordingly, NAD's articles were amended; on July 23, 1957, the holder of each share of preferred received, in exchange therefor, a $50 face value 5% debenture due July 1, 1975, and a warrant to subscribe to a half share of common at $10 per share in lieu of the dividend arrearage; and the preferred was eliminated and canceled as of August 1. This was reflected on NAD's books by a debit to the preferred stock account for $2,352,950, thereby eliminating that account, and by a credit to the liability account for the 18-year 5% debentures in the aggregate amount of $2,352,950.NAD's preferred shares were not listed. During the period from July 15-30, 1957, the bid quotation for the preferred on the over-the-counter market ranged from a low of 29 to a high of 33, and the offering quotation Page 417 U. S. 140 ranged from a low of 32 to a high of 35. App. 161. [Footnote 4] On July 23, when the exchange was effected, the midpoint between the bid and offering quotations on the over-the-counter market was 33. The National Stock Summary for October 1, 1957, showed 100 shares of NAD preferred wanted on July 9 at 32 and on July 10 at 33, and 100 shares offered on July 10 at 35. Id. at 167. It showed no quotations for the warrants in July and only nominal figure want quotations for them on four dates in August. Id. at 168.On each of its federal income tax returns for the fiscal years ended April 30, 1958, to 1967, inclusive, NAD claimed a deduction under § 163(a) for what it regarded as interest, by reason of debt discount, measured by the difference between $33 per share for the preferred on July 23, 1957, and the face amount of the debentures. This difference amounted to $800,003 ($2,352,950 for the debentures, less $1,552,947 for the preferred). The $800,003 was then amortized on a straight-line basis over the 18-year life of the debentures, with an addition each year for the unamortized discount on any debentures currently repurchased or redeemed. See Rev.Rul. 70-353, 1970-2 Cum.Bull. 39. The deductions claimed are set forth in the margin; [Footnote 5] those of the earlier years were reflected in losses carried over to fiscal 1967. Page 417 U. S. 141Upon audit of NAD's return for fiscal 1967, the Commissioner of Internal Revenue disallowed the debt discount of $109,804 claimed for that year and $321,657 in loss carryovers from prior taxable years that were due to debt-discount deductions asserted in those years. This resulted in a substantial deficiency in NAD's 1967 corporate income tax.On petition for redetermination, the Tax Court, by a unanimous reviewed opinion, upheld the Commissioner. 57 T.C. 46 (1971). Adopting the reasoning of the Court of Claims in Erie Lackawanna R. Co. v. United States, 190 Ct.Cl. 682, 422 F.2d 425 (1970), and in Missouri Pacific R. Co. v. United States, 192 Ct.Cl. 318, 427 F.2d 727, modified on rehearing, 193 Ct.Cl. 257, 433 F.2d 1324 (1970), cert. denied, 402 U.S. 944 (1971), the Tax Court held that, when a corporation issues obligations in exchange for its outstanding preferred, no discount arises if the amount that had been received upon the issuance of the preferred was equal to Page 417 U. S. 142 the face amount of the obligations issued upon the exchange. The market value of the preferred at the time of the exchange, therefore, would be of no relevance.On appeal, the United States Court of Appeals for the Tenth Circuit, by a divided vote, reversed. 472 F.2d 796 (1973). Relying upon American Smelting & Refining Co. v. United States, 130 F.2d 883 (CA3 1942), and Atchison, T. & S. F. R. Co. v. United States, 443 F.2d 147 (CA10 1971), the court held that the difference between the value of the preferred and the face amount of the debentures at the time of the exchange represented a discount or expense of borrowing, and qualified as an interest deduction to be properly amortized over the life of the debentures. We granted certiorari to resolve the indicated conflict. 414 U.S. 817 (1973).IIThe situation with which we are here concerned, therefore, is one where a taxpayer corporation issued debt obligations, namely, debentures, in exchange for its own outstanding preferred shares. It is not one where the taxpayer issued debt obligations in exchange for cash in an amount less than the obligations' face amount, or in exchange for property other than its own stock.Section 163(a), which is set forth in n 1, supra, is the statute NAD seeks to invoke in order to have the benefit of a deduction for what it claims is amortizable debt discount. The statute relates simply to "all interest paid or accrued within the taxable year on indebtedness." NAD's debentures obviously represented debt, and the stated 5% interest due semiannually on those debentures just as obviously would qualify as a deduction from gross income for NAD under § 163(a). The issue here, however, is whether NAD is also entitled, in addition to the deduction for the stated interest, to a further deduction, Page 417 U. S. 143 as "interest paid or accrued," for an appropriately amortized portion of the claimed $17 difference between the face amount of each $50 debenture and the value of each share of preferred on July 23, 1957.Original-issue discount typically arises where an issuer sells its debt obligation on the market for cash at a price less than the face amount of the obligation. The difference, obviously, is the discount. A simple example is where a corporation issues its 6% $1,000 10-year bond for $950 cash. The corporation is obliged to pay and the bondholder is entitled to receive, the stated annual interest of 6%, or $60. That amount is deductible by the corporation and is includable in the payee's gross income as interest received. But the $50 difference between the face amount of the obligation and the issue price is an additional cost to the issuing corporation for the use of the money it is borrowing. That cost spread over the 10-year life of the bond amounts to $5 per year. Accepted accounting practice treats this discount as interest under § 163(a). [Footnote 6]The Internal Revenue Code of 1939 and its predecessors did not provide explicitly for amortization and deduction of debt discount. The successive regulations, however, beginning with Art. 150 of Treasury Regulations 33 (revised 1918), issued under the Revenue Act of 1916, have provided for such amortization and deduction by the issuer. [Footnote 7] Page 417 U. S. 144The first statutory recognition of bond discount appeared in § 1232(b)(1) of the 1954 Code. That section provides:"For purposes of subsection (a), the term 'original issue discount' means the difference between the issue price and the stated redemption price at maturity. . . ."Section 1232(b)(2) defines "issue price" in some detail. [Footnote 8] Page 417 U. S. 145This Court has recognized debt discount as an additional cost incurred in borrowing money. In Helvering v. Union Pacific R. Co., 293 U. S. 282 (1934), in considering Art. 150 of Regulations 33 (revised 1918), which described bond discount as a "loss" to be "prorated over the life of the bonds sold," the Court referred to discount not only as a loss, but also as "interest paid for the use of capital procured by a bond issue." 293 U.S. at 293 U. S. 286. More recently, in United States v. Midland-Ross Corp., 381 U. S. 54 (1965), we clarified any ambiguity that may have resulted from the interest-loss approach when we stated, id. at 381 U. S. 57:"Earned original issue discount serves the same function as stated interest. . . . [I]t is simply 'compensation for the use or forbearance of money.' Deputy v. du Pont, 308 U. S. 488, 308 U. S. 498."It was also observed that,"despite some expressions indicating a contrary view, this Court has often recognized the economic function of discount as interest."Id. at 381 U. S. 66 (footnote omitted). Accordingly, the discount may result ultimately in income to the purchaser, [Footnote 9] but when amortized over the life of the obligation, it is deductible by the issuer. Page 417 U. S. 146While it is thus established that debt discount may ensue when a corporate debt obligation is issued at a discount for cash, this Court has never decided the question whether discount may result when debt obligations are issued in exchange for property other than cash. Those courts that have passed upon the issue have reached opposing conclusions. Compare Nassau Lens Co. v. Commissioner, 308 F.2d 39 (CA2 1962); American Smelting & Refining Co. v. United States, 130 F.2d 883 (CA3 1942); Southern Fertilizer & Chemical Co. v. Edwards, 167 F. Supp. 879 (MD Ga.1955), to the effect that debt discount is available, with Southern Natural Gas Co. v. United States, 188 Ct.Cl. 302, 412 F.2d 1222, Page 417 U. S. 147 1235-1239 (1969); Montana Power Co. v. United States, 141 Ct.Cl. 620, 159 F. Supp. 593, cert. denied, 358 U.S. 842 (1958); Montana Power Co. v. United States, 232 F.2d 541 (CA3) (en banc), [Footnote 10] cert. denied, 352 U.S. 843 (1956), to the effect that it is not available. This, of course, is a broader question than the one presented in the present case, and we need not, and do not, decide that broader issue. We are concerned, instead, only with the narrow issue whether debt discount arises where a corporate taxpayer issues an obligation in exchange for its own outstanding preferred shares.In order properly to determine whether debt discount may be said to arise in such a situation, it becomes necessary to recognize the reason or factor that has been thought to justify the deduction. This has been the economic resemblance, in both form and function, which bond discount bears to stated interest for which the Revenue Acts and the Codes have allowed a deduction. Although, as has been noted, there has been some descriptive confusion in the regulations, with their references to "loss" as well as to "interest," and, as has also been noted, this Court, in Helvering v. Union Pacific R. Co., 23 U.S. at 23 U. S. 286, seemed to describe discount both as "interest paid for the use of capital" and as "loss resulting from the funding operation," the relevant inquiry in each case must be whether the issuer-taxpayer has incurred, as a result of the transaction, some cost or expense of acquiring the use of capital. It is to that inquiry we now turn.IIIIt is NAD's position, of course, that amortizable bond discount arose on the exchange of its debentures for its Page 417 U. S. 148 outstanding preferred. It, and the Court of Appeals' majority, would look to what it calls the "economic realities" of the transaction in order to determine whether a cost of borrowing was incurred. The Court of Appeals likened the transaction to one where the corporation actually issued its $50 debenture for $33 in cash upon the open market (or to a holder of preferred) and then used that cash to purchase and retire outstanding preferred at $33 per share. 472 F.2d at 802. Upon such a transaction, it is claimed, there can be no question whatsoever that a deductible discount of $17 per debenture would result. It is argued that to deny similar treatment to the transaction which did take place, where a direct exchange was made with the preferred shareholder, would require a corporate taxpayer in the future to engage in a complex and expensive series of securities transactions in order to establish its entitlement to a deduction.This argument, however, calls upon this Court to take two steps that we are reluctant and unwilling to take. First, it would require rejection of the established tax principle that a transaction is to be given its tax effect in accord with what actually occurred, and not in accord with what might have occurred. Second, it would require us to speculate about the market price and value to the corporation of the debentures in question had they been sold upon the open market.Even if we were to assume, arguendo, that the hypothetical transaction posed by the taxpayer and the Court of Appeals was indistinguishable, as a matter of economic reality, from what actually occurred, we would not be required, for that reason alone, to recognize a claimed deduction for debt discount. The propriety of a deduction does not turn upon general equitable considerations, such as a demonstration of effective economic and practical Page 417 U. S. 149 equivalence. Rather, it "depends upon legislative grace; and only as there is clear provision therefor can any particular deduction be allowed." New Colonial Ice Co. v. Helvering, 292 U. S. 435, 292 U. S. 440 (1934); Deputy v. Du Pont, 308 U. S. 488, 308 U. S. 493 (1940). This Court has observed repeatedly that, while a taxpayer is free to organize his affairs as he chooses, nevertheless, once having done so, he must accept the tax consequences of his choice, whether contemplated or not, Higgins v. Smith, 308 U. S. 473, 308 U. S. 477 (1940); Old Mission Portland Cement Co. v. Helvering, 293 U. S. 289, 293 U. S. 293 (1934); Gregory v. Helvering, 293 U. S. 465, 293 U. S. 469 (1935), and may not enjoy the benefit of some other route he might have chosen to follow but did not."To make the taxability of the transaction depend upon the determination whether there existed an alternative form which the statute did not tax would create burden and uncertainty."Founders General Corp. v. Hoey, 300 U. S. 268, 300 U. S. 275 (1937); Television Industries, Inc. v. Commissioner, 284 F.2d 322, 325 (CA2 1960); Interlochen Co. v. Commissioner, 232 F.2d 873, 877 (CA4 1956). See Gray v. Powell, 314 U. S. 402, 314 U. S. 414 (1941).Both the rationale and the wisdom of the Court's attitude toward such attempts at reconstruction of transactions are particularly well demonstrated in the present case. In the absence of any actual or even attempted sales of debentures or purchases of the preferred by NAD in the open market, the Court is called upon to speculate as to what the market price and the investor reaction to such events would have been. There are several reasons why we cannot do this:First, there is nothing in the record establishing the cash price at which the debentures could have been sold upon the market had they been offered for sale. The current rate for money and the credit status of the borrower Page 417 U. S. 150 are pertinent factors in the determination of discount (or premium) on an open market, as contrasted with a closed transaction.Second, there is also nothing in the record to indicate that NAD would have been able to purchase all its outstanding preferred on the open market, or at what price that quantity of stock would have been purchased in light of the impending exchange. See Gulf, M. & O. R Co. v. United States, 339 F. Supp. 489 (SD Ala.), final decision 31 A.F.T.R.2d 73-436 (1972), pending on appeal to CA5 and deferred awaiting the decision in this case; Cities Service Co. v. United States, 316 F. Supp. 61 (SDNY 1970) and 362 F. Supp. 830 (SDNY 1973), appeal to CA2 pending. The stipulated over-the-counter quotations, set forth in n 4, supra, and in the cited National Stock Summary, are quotations only for what, at most, was a thin market, and were hardly representative of the fair market value of the entire 47,059 preferred shares outstanding. The preferred's redemption price at the time was $51 plus the arrearage, or a total of $61, almost double the claimed $33 per share.Third, when a corporation issues to its preferred shareholders its own new debt obligations in exchange for outstanding preferred, the claimed fair market value of both securities is somewhat artificial, since the exchange is effectively insulated from market forces by the intracorporate and private nature of the transaction. See Missouri Pacific R. Co. v. United States, 192 Ct.Cl. at 324-325, 427 F.2d at 730-731. The economics underlying discount is that it is an adjustment of the difference between the interest prescribed in the instrument issued and the prevailing market rate for money, and it arises because the prescribed rate is too low to sell the obligations at par in that market. See San Joaquin Light & Power Corp. v. McLaughlin, 65 F.2d 677, 679 (CA9 Page 417 U. S. 151 1933). Thus, implicit in the concept of debt discount is the assumption, and indeed the requirement, that the transaction be subject to the exigencies of the competitive money market.Here, there has been no demonstration that the difference between the claimed $33 per share value of NAD's preferred (laying aside for the moment the aforementioned difficulties in arriving at that determination) and the face amount of the debentures is attributable to debt discount. As the Tax Court noted, 57 T.C. at 52 n. 6, there is no evidence of what the fair market value of the bonds was at the time of their issuance. Other factors that would have to be considered would include NAD's financial condition at the time of the exchange, including both its credit position and its profits prospects, and the availability and cost of capital in the general market as well as from its preferred shareholders. Normally, the market itself performs this evaluative process. Aside from the fact that the transaction was insulated from the market processes, there has been no attempt here to show that the discount rate was determined with a view toward accounting for these several factors, rather than simply having been predicated on the par value of the preferred. Accordingly, the requisite evaluation of the property to be exchanged cannot occur in this intracorporate transaction and debt discount cannot be determined. Cf. Gulf, M. & O. R. Co. v. United States, supra; Southern Fertilizer & Chemical Co. v. Edwards, 167 F. Supp. at 881.IVIt has not been demonstrated that NAD, by the exchange, incurred any additional cost for the use of capital. NAD merely replaced that portion of its paid-in capital represented by its preferred with paid-in capital represented by its debentures. From the perspective of the Page 417 U. S. 152 corporation, the transaction was the exchange of one form of interest or participation in the corporation for another. But the corporate assets were neither increased nor diminished. [Footnote 11]To be sure, upon the issuance of its debentures, NAD assumed a fixed obligation to pay at a date certain. The transaction, therefore, perhaps could be said to be something more than a mere reshuffling of the corporation's capital structure, see Helvering v. Southwest Consolidated Corp., 315 U. S. 194, 315 U. S. 202 (1942), since a creditor was substituted for a holder with an ownership interest. [Footnote 12] But again, when viewed from the corporation's perspective, and regardless of the income tax effect upon the former preferred shareholder, which we deem to be irrelevant, there has been no new capital acquired and no additional cost incurred in retaining the old capital. See St. Louis-S. F. R. Co. v. United States, 195 Ct.Cl. 343, 350, 444 F.2d 1102, 1106 (1971), cert. denied, 404 U.S. 1017 (1972). Page 417 U. S. 153In obvious explanation of this, NAD originally received $50 cash for each share of preferred. Although it was not obligated to repay that sum at any fixed time, it made use of that cash pursuant to the provisions of its articles, including both the sinking fund and the redemption-liquidation provisions. Upon the exchange, the corporation canceled the preferred, and thus eliminated the preferred stock account upon its books, together with the preferred's attendant obligations. The market value of the preferred at that moment bore no direct relationship to the amount of funds on hand. The capital "freed" by the cancellation of the preferred was merely transferred to the liability account for the debentures. No new capital was involved. See Claussen's, Inc. v. United States, 469 F.2d 340 (CA5 1972). [Footnote 13]It is true that there was some change in the corporate structure. Henceforth, NAD would receive a deduction for interest paid on the debentures, whereas the 5% dividend paid on the preferred had not been deductible. The common shareholders were benefited by the elimination of the dividend arrearages on the preferred and by the elimination of the premium payable on the preferred's retirement. Yet the change was not great. The fixed interest on the debentures was equal to the cumulative dividend on the preferred, and both the preferred and Page 417 U. S. 154 the debentures worked equal diminutions in the earnings otherwise available for the common shareholders. The debentures, of course, were to mature in 1975, but the sinking fund provisions for both the preferred and the debentures were comparable. Thus, the interest of the preferred shareholders "was fairly reflected in the highly equivalent characteristics of the debentures into which the preferred was converted." Penfield v. Davis, 105 F. Supp. 292, 311 (ND Ala.1952), aff'd, 205 F.2d 798 (CA5 1953). The cost of the capital invested in the corporation was the same whether represented by the preferred or by the debentures, and was totally unaffected by the market value of the shares received at the time of the issuance of the debentures. Accordingly, while recognizing the alteration which did occur in the corporation's capital structure, we conclude that the substitution by NAD of its debentures for its previously outstanding preferred, without more, did not create an obligation to pay in excess of an amount previously committed, or establish the base upon which debt discount can arise.In sum, the alteration in the form of the retained capital did not give rise to any cost of borrowing to NAD. The fact that the preferred may have been worth something in the neighborhood of only $33 per share on the market at the time of the exchange was of no consequence, since NAD was not required to go into that market and purchase those shares. It was able, instead, to obtain the preferred merely by canceling the $50 obligation per share on its equity account and transferring that amount to its debt account. It is in this sense that an exchange of a corporation's own outstanding preferred for newly issued debt obligations may differ, in the tax sense, from an exchange for other property. Such other property -- for example, inventory or the stock Page 417 U. S. 155 of another corporation -- does not equate with a previous contribution of capital which can continue to be utilized by the corporation at no cost upon cancellation of the preferred equity account.We hold, accordingly, that NAD did not incur amortizable bond discount upon the issuance of its $50 face value 5% debentures in exchange for its outstanding $50 par cumulative preferred stock. The judgment of the Court of Appeals is reversed.It is so ordered | U.S. Supreme CourtCommissioner v. National Alfalfa, 417 U.S. 134 (1974)Commissioner of Internal Revenue v.National Alfalfa Dehydrating & Milling Co.No. 73-9Argued January 14, 1974Decided May 28, 1974417 U.S. 134SyllabusRespondent corporate taxpayer, pursuant to a recapitalization plan, issued $50 face value 5% sinking fund debentures in exchange for its outstanding unlisted $50 par 5% cumulative preferred shares, which at the time were quoted at approximately $33 per share on the over-the-counter market. Based on the exchange, respondent claimed on its income tax returns for several years deductions for debt discount under § 163(a) of the Internal Revenue Code of 1954, which allows deductions for interest paid on indebtedness. Respondent asserted that the debt discount, measured by the difference between a claimed $33 per share value for the preferred and the face amount of the debentures, amortized over the life of the debentures, constituted deductible interest within the purview of that provision. The Commissioner disallowed the deductions, and was upheld by the Tax Court, but the Court of Appeals reversed.Held: Respondent did not incur amortizable debt discount upon the issuance of its debentures in exchange for its outstanding preferred stock. Pp. 417 U. S. 142-155.(a) In determining whether debt discount arises in the situation presented here, the relevant inquiry must be whether the corporate taxpayer has incurred, as a result of the transaction, some cost or expense of acquiring the use of capital. P. 417 U. S. 147.(b) The propriety of a deduction does not turn upon general equitable considerations, such as a demonstration of effective economic and practical equivalence to what actually occurred, but rather "depends upon legislative grace; and only as there is clear provision therefor can any particular deduction be allowed." New Colonial Co. v. Helvering, 292 U. S. 435, 292 U. S. 440. Pp. 417 U. S. 147-149.(c) This Court will not speculate as to what the market price and the investor reaction to any sales of the debentures or purchases of the preferred by respondent in the open market would have been, since there is nothing in the record to establish the cash price at which the debentures could have been sold upon the Page 417 U. S. 135 market or to indicate that respondent would have been able to purchase all its outstanding preferred on the open market, or at what price that stock would have been purchased in light of the impending exchange; moreover, when a corporation issues to its preferred shareholders its own new debt obligations in exchange for the outstanding preferred, the claimed fair market value of both securities is somewhat artificial, since the exchange is effectively insulated from market forces. Pp. 417 U. S. 149-151.(d) Absent any evidence that the difference between the claimed $33 per share of the preferred and the face amount of the debentures is attributable to debt discount or that the discount rate was determined by such factors as respondent's financial condition at the time of the exchange and the availability and cost of capital in the general market as well as from the preferred shareholders, rather than simply having been predicated on the preferred's par value, the requisite evaluation of the property to be exchanged cannot occur, and debt discount cannot be determined . P. 417 U. S. 151.(e) The alteration in the form of the retained capital did not give rise to any cost of borrowing to respondent, since the cost of the capital invested in respondent was the same whether represented by the preferred or by the debentures, and was totally unaffected by the market value of the preferred received in exchange. Pp. 417 U. S. 151-155.472 F.2d 796, reversed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, BRENNAN, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined, and in Parts I, II, and III of which STEWART, J., joined. STEWART, J., concurred in the judgment. Page 417 U. S. 136 |
336 | 1988_87-6177 | JUSTICE O'CONNOR delivered the opinion of the Court, except as to Part IV-C.In this case, we must decide whether petitioner, Johnny Paul Penry, was sentenced to death in violation of the Eighth Amendment because the jury was not instructed that it could consider and give effect to his mitigating evidence in imposing its sentence. We must also decide whether the Eighth Amendment categorically prohibits Penry's execution because he is mentally retarded.IOn the morning of October 25, 1979, Pamela Carpenter was brutally raped, beaten, and stabbed with a pair of scissors in her home in Livingston, Texas. She died a few hours later in the course of emergency treatment. Before she died, she described her assailant. Her description led two local sheriff's deputies to suspect Penry, who had recently been released on parole after conviction on another rape charge. Penry subsequently gave two statements confessing to the crime, and was charged with capital murder.At a competency hearing held before trial, a clinical psychologist, Dr. Jerome Brown, testified that Penry was mentally retarded. As a child, Penry was diagnosed as having organic brain damage, which was probably caused by trauma to the brain at birth. App. 34-35. Penry was tested over the years as having an IQ between 50 and 63, which indicates Page 492 U. S. 308 mild to moderate retardation. [Footnote 1] Id. at 36-38, 55. Dr. Brown's own testing before the trial indicated that Penry had an IQ of 54. Dr. Brown's evaluation also revealed that Penry, who was 22 years old at the time of the crime, had the mental age of a 6 1/2-year-old, which means that "he has the ability to learn and the learning or the knowledge of the average 6 1/2-year-old kid." Id. at 41. Penry's social maturity, or ability to function in the world, was that of a 9- or 10-year-old. Dr. Brown testified that "there's a point at which anyone with [Penry's] IQ is always incompetent, but, you know, this man is more in the borderline range." Id. at 47.The jury found Penry competent to stand trial. Id. at 20-24. The guilt-innocence phase of the trial began on March 24, 1980. The trial court determined that Penry's confessions were voluntary, and they were introduced into evidence. At trial, Penry raised an insanity defense and presented the testimony of a psychiatrist, Dr. Jose Garcia. Dr. Garcia testified that Penry suffered from organic brain damage and moderate retardation, which resulted in poor impulse control and an inability to learn from experience. Id. at 18, 19, 87-90. Dr. Garcia indicated that Penry's brain damage was probably caused at birth, id. at 106, but may have been caused by beatings and multiple injuries to the Page 492 U. S. 309 brain at an early age. Id. at 18, 90. In Dr. Garcia's judgment, Penry was suffering from an organic brain disorder at the time of the offense which made it impossible for him to appreciate the wrongfulness of his conduct or to conform his conduct to the law. Id. at 86-87.Penry's mother testified at trial that Penry was unable to learn in school, and never finished the first grade. Penry's sister testified that their mother had frequently beaten him over the head with a belt when he was a child. Penry was also routinely locked in his room without access to a toilet for long periods of time. Id. at 124, 126, 127. As a youngster, Penry was in and out of a number of state schools and hospitals, until his father removed him from state schools altogether when he was 12. Id. at 120. Penry's aunt subsequently struggled for over a year to teach Penry how to print his name. Id. at 133.The State introduced the testimony of two psychiatrists to rebut the testimony of Dr. Garcia. Dr. Kenneth Vogtsberger testified that, although Penry was a person of limited mental ability, he was not suffering from any mental illness or defect at the time of the crime, and that he knew the difference between right and wrong and had the potential to honor the law. Id. at 144-145. In his view, Penry had characteristics consistent with an antisocial personality, including an inability to learn from experience and a tendency to be impulsive and to violate society's norms. Id. at 149-150. He testified further that Penry's low IQ scores underestimated his alertness and understanding of what went on around him. Id. at 146.Dr. Felix Peebles also testified for the State that Penry was legally sane at the time of the offense, and had a "full-blown anti-social personality." Id. at 171. In addition, Dr. Peebles testified that he personally diagnosed Penry as being mentally retarded in 1973 and again in 1977, and that Penry "had a very bad life generally, bringing up." Id. at 168-169. In Dr. Peebles' view, Penry "had been socially and Page 492 U. S. 310 emotionally deprived, and he had not learned to read and write adequately." Id. at 169. Although they disagreed with the defense psychiatrist over the extent and cause of Penry's mental limitations, both psychiatrists for the State acknowledged that Penry was a person of extremely limited mental ability, and that he seemed unable to learn from his mistakes. Id. at 149, 172-173.The jury rejected Penry's insanity defense, and found him guilty of capital murder. Tex.Penal Code Ann. §19.03 (1974 and Supp. 1989). The following day, at the close of the penalty hearing, the jury decided the sentence to be imposed on Penry by answering three "special issues":"(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;""(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and""(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased."Tex.Code Crim.Proc.Ann., Art. 37.071(b) (Vernon 1981 and Supp. 1989). If the jury unanimously answers "yes" to each issue submitted, the trial court must sentence the defendant to death. Art. 37.071(c)-(e). Otherwise, the defendant is sentenced to life imprisonment. Ibid.Defense counsel raised a number of objections to the proposed charge to the jury. With respect to the first special issue, he objected that the charge failed to define the term "deliberately." App. 210. With respect to the second special issue, he objected that the charge failed to define the terms "probability," "criminal acts of violence," and "continuing threat to society." Id. at 210-211. Defense counsel Page 492 U. S. 311 also objected to the charge because it failed to "authorize a discretionary grant of mercy based upon the existence of mitigating circumstances" and because it"fail[ed] to require as a condition to the assessment of the death penalty that the State show beyond a reasonable doubt that any aggravating circumstances found to exist outweigh any mitigating circumstances."Id. at 211. In addition, the charge failed to instruct the jury that it may take into consideration all of the evidence whether aggravating or mitigating in nature which was submitted in the full trial of the case. Id. at 212. Defense counsel also objected that, in light of Penry's mental retardation, permitting the jury to assess the death penalty in this case amounted to cruel and unusual punishment prohibited by the Eighth Amendment. Id. at 211.These objections were overruled by the trial court. The jury was then instructed that the State bore the burden of proof on the special issues, and that, before any issue could be answered "yes," all twelve jurors must be convinced by the evidence beyond a reasonable doubt that the answer to that issue should be "yes." Id. at 25. The jurors were further instructed that, in answering the three special issues, they could consider all the evidence submitted in both the guilt-innocence phase and the penalty phase of the trial. Id. at 26. The jury charge then listed the three questions, with the names of the defendant and the deceased inserted.The jury answered "yes" to all three special issues, and Penry was sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal. Penry v. State, 691 S.W.2d 636 (Tex. Crim.App. 1985). That court held that terms such as "deliberately," "probability," and "continuing threat to society" used in the special issues need not be defined in the jury charge, because the jury would know their common meaning. Id. at 653-654. The court concluded that Penry was allowed to present all relevant mitigating evidence at the punishment hearing, and that there was no constitutional infirmity in failing to Page 492 U. S. 312 require the jury to find that aggravating circumstances outweighed mitigating ones or in failing to authorize a discretionary grant of mercy based upon the existence of mitigating circumstances. Id. at 654. The court also held that imposition of the death penalty was not prohibited by virtue of Penry's mental retardation. Id. at 654-655. This Court denied certiorari on direct review. Sub nom. Penry v. Texas, 474 U. S. 1073 (1986).Penry then filed this federal habeas corpus petition challenging his death sentence. Among other claims, Penry argued that he was sentenced in violation of the Eighth Amendment because the trial court failed to instruct the jury on how to weigh mitigating factors in answering the special issues, and failed to define the term "deliberately." Penry also argued that it was cruel and unusual punishment to execute a mentally retarded person. The District Court denied relief, App. 234-273, and Penry appealed to the Court of Appeals for the Fifth Circuit.The Court of Appeals affirmed the District Court's judgment. 832 F.2d 915 (1987). The court stressed, however, that it found considerable merit in Penry's claim that the jury was not allowed to consider and apply all of his personal mitigating circumstances in answering the Texas special issues. Although the jury was presented with evidence that might mitigate Penry's personal culpability for the crime, such as his mental retardation, arrested emotional development, and abused background, the jury could not give effect to that evidence by mitigating Penry's sentence to life imprisonment. "Having said that it was a deliberate murder and that Penry will be a continuing threat, the jury can say no more." Id. at 920. In short, the court did not see how Penry's mitigating evidence, under the instructions given, could be fully acted upon by the jury, because "[t]here is no place for the jury to say no' to the death penalty" based on the mitigating force of those circumstances. Id. at 925. Although the court questioned whether Penry was given the individualized Page 492 U. S. 313 sentencing that the Constitution requires, it ultimately concluded that prior Circuit decisions required it to reject Penry's claims. Id. at 926. The court also rejected Penry's contention that it was cruel and unusual punishment to execute a mentally retarded person such as himself. Id. at 918 (citing Brogdon v. Butler, 824 F.2d 338, 341 (CA5 1987)).We granted certiorari to resolve two questions. 487 U.S. 1233 (1988). First, was Penry sentenced to death in violation of the Eighth Amendment because the jury was not adequately instructed to take into consideration all of his mitigating evidence and because the terms in the Texas special issues were not defined in such a way that the jury could consider and give effect to his mitigating evidence in answering them? Second, is it cruel and unusual punishment under the Eighth Amendment to execute a mentally retarded person with Penry's reasoning ability?IIAPenry is currently before the Court on his petition in federal court for a writ of habeas corpus. Because Penry is before us on collateral review, we must determine, as a threshold matter, whether granting him the relief he seeks would create a "new rule." Teague v. Lane, 489 U. S. 288, 489 U. S. 301 (1989). Under Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions. Id. at 489 U. S. 311-313.Teague was not a capital case, and the plurality opinion expressed no views regarding how the retroactivity approach adopted in Teague would be applied in the capital sentencing context. Id. at 489 U. S. 314, n. 2. The plurality noted, however, that a criminal judgment necessarily includes the sentence imposed, and that collateral challenges to sentences"delay the enforcement of the judgment at issue and decrease the possibility that 'there will at some point be the certainty that comes with an end to litigation.'"Ibid. (quoting Sanders v. Page 492 U. S. 314 United States, 373 U. S. 1, 373 U. S. 25 (1963) (Harlan, J., dissenting)). See also Mackey v. United States, 401 U. S. 667, 401 U. S. 690-695 (1971) (Harlan, J., concurring in judgments in part and dissenting in part). In our view, the finality concerns underlying Justice Harlan's approach to retroactivity are applicable in the capital sentencing context, as are the two exceptions to his general rule of nonretroactivity. See Teague, supra, at 489 U. S. 311-313.BAs we indicated in Teague,"[i]n general . . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government."489 U.S. at 489 U. S. 301. Or,"[t]o put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final."Ibid. (emphasis in original). Teague noted that "[i]t is admittedly often difficult to determine when a case announces a new rule." Ibid. Justice Harlan recognized"the inevitable difficulties that will arise in attempting "to determine whether a particular decision has really announced a new' rule at all, or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law."" Mackey, supra, at 401 U. S. 695 (opinion concurring in judgments in part and dissenting in part) (quoting Desist v. United States, 394 U. S. 244, 394 U. S. 263 (1969) (Harlan, J., dissenting)). See generally Yates v. Aiken, 484 U. S. 211, 484 U. S. 216-217 (1988) (concluding that Francis v. Franklin, 471 U. S. 307 (1985), did not announce a new rule, but was "merely an application of the principle that governed our decision in Sandstrom v. Montana, [442 U.S. 510 (1979),] which had been decided before petitioner's trial took place").Penry's conviction became final on January 13, 1986, when this Court denied his petition for certiorari on direct review of his conviction and sentence. Sub nom. Penry v. Texas, supra. This Court's decisions in Lockett v. Ohio, 438 U.S. Page 492 U. S. 315 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982), were rendered before his conviction became final. Under the retroactivity principles adopted in Griffith v. Kentucky, 479 U. S. 314 (1987), Penry is entitled to the benefit of those decisions. Citing Lockett and Eddings, Penry argues that he was sentenced to death in violation of the Eighth Amendment because, in light of the jury instructions given, the jury was unable to fully consider and give effect to the mitigating evidence of his mental retardation and abused background, which he offered as the basis for a sentence less than death. Penry thus seeks a rule that, when such mitigating evidence is presented, Texas juries must, upon request, be given jury instructions that make it possible for them to give effect to that mitigating evidence in determining whether a defendant should be sentenced to death. We conclude, for the reasons discussed below, that the rule Penry seeks is not a "new rule" under Teague.Penry does not challenge the facial validity of the Texas death penalty statute, which was upheld against an Eighth Amendment challenge in Jurek v. Texas, 428 U. S. 262 (1976). Nor does he dispute that some types of mitigating evidence can be fully considered by the sentencer in the absence of special jury instructions. See Franklin v. Lynaugh, 487 U. S. 164, 487 U. S. 175 (1988) (plurality opinion); id. at 487 U. S. 185-186 (O'CONNOR, J., concurring in judgment). Instead, Penry argues that, on the facts of this case, the jury was unable to fully consider and give effect to the mitigating evidence of his mental retardation and abused background in answering the three special issues. In our view, the relief Penry seeks does not "impos[e] a new obligation" on the State of Texas. Teague, supra, at 489 U. S. 301. Rather, Penry simply asks the State to fulfill the assurance upon which Jurek was based: namely, that the special issues would be interpreted broadly enough to permit the sentencer to consider all of the relevant mitigating evidence a defendant might present in imposing sentence. Page 492 U. S. 316In Jurek, the joint opinion of Justices Stewart, Powell, and STEVENS noted that the Texas statute narrowed the circumstances in which the death penalty could be imposed to five categories of murders. 428 U.S. at 428 U. S. 268. Thus, although Texas had not adopted a list of statutory aggravating factors that the jury must find before imposing the death penalty, "its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose," id. at 428 U. S. 270, and effectively "requires the sentencing authority to focus on the particularized nature of the crime." Id. at 428 U. S. 271. To provide the individualized sentencing determination required by the Eighth Amendment, however, the sentencer must be allowed to consider mitigating evidence. Ibid. Indeed, as Woodson v. North Carolina, 428 U. S. 280 (1976), made clear,"in capital cases, the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death."Id. at 428 U. S. 304 (plurality opinion).Because the Texas death penalty statute does not explicitly mention mitigating circumstances, but rather directs the jury to answer three questions, Jurek reasoned that the statute's constitutionality "turns on whether the enumerated questions allow consideration of particularized mitigating factors." 428 U.S. at 428 U. S. 272. Although the various terms in the special questions had yet to be defined, the joint opinion concluded that the sentencing scheme satisfied the Eighth Amendment on the assurance that the Texas Court of Criminal Appeals would interpret the question concerning future dangerousness so as to allow the jury to consider whatever mitigating circumstances a defendant may be able to show, including a defendant's prior criminal record, age, and mental or emotional state. Id. at 428 U. S. 272-273. Page 492 U. S. 317Our decisions subsequent to Jurek have reaffirmed that the Eighth Amendment mandates an individualized assessment of the appropriateness of the death penalty. In Lockett v. Ohio, 438 U. S. 586 (1978), a plurality of this Court held that the Eighth and Fourteenth Amendments require that the sentencer"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 that the defendant proffers as a basis for a sentence less than death."Id. at 438 U. S. 604 (emphasis in original). Thus, the Court held unconstitutional the Ohio death penalty statute which mandated capital punishment upon a finding of one aggravating circumstance unless one of three statutory mitigating factors was present.Lockett underscored Jurek's recognition that the constitutionality of the Texas scheme "turns on whether the enumerated questions allow consideration of particularized mitigating factors." Jurek, 428 U.S. at 428 U. S. 272. The plurality opinion in Lockett indicated that the Texas death penalty statute had"survived the petitioner's Eighth and Fourteenth Amendment attack [in Jurek] because three Justices concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question -- despite its facial narrowness -- so as to permit the sentencer to consider 'whatever mitigating circumstances' the defendant might be able to show."438 U.S. at 438 U. S. 607. Thus, the Lockett plurality noted that neither the Texas statute upheld in 1976 nor the statutes that had survived facial challenges in Gregg v. Georgia, 428 U. S. 153 (1976), and Proffitt v. Florida, 428 U. S. 242 (1976),"clearly operated at that time to prevent the sentencer from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor."Lockett, supra, at 438 U. S. 607. Cf. Hitchcock v. Dugger, 481 U. S. 393 (1987) (sustaining "as applied" challenge to Florida death penalty statute); Godfrey Page 492 U. S. 318 v. Georgia, 446 U. S. 420 (1980) (sustaining "as applied" challenge to Georgia death penalty statute).In Eddings v. Oklahoma, 455 U. S. 104 (1982), a majority of the Court reaffirmed that a sentencer may not be precluded from considering, and may not refuse to consider, any relevant mitigating evidence offered by the defendant as the basis for a sentence less than death. In Eddings, the Oklahoma death penalty statute permitted the defendant to introduce evidence of any mitigating circumstance, but the sentencing judge concluded, as a matter of law, that he was unable to consider mitigating evidence of the youthful defendant's troubled family history, beatings by a harsh father, and emotional disturbance. Applying Lockett, we held that"[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence."455 U.S. at 455 U. S. 113-114 (emphasis in original). In that case, "it was as if the trial judge had instructed a jury to disregard the mitigating evidence [the defendant] proffered on his behalf." Id. at 114.Thus, at the time Penry's conviction became final, it was clear from Lockett and Eddings that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or to the circumstances of the offense that mitigate against imposing the death penalty. Moreover, the facial validity of the Texas death penalty statute had been upheld in Jurek on the basis of assurances that the special issues would be interpreted broadly enough to enable sentencing juries to consider all of the relevant mitigating evidence a defendant might present. Penry argues that those assurances were not fulfilled in his particular case because, without appropriate instructions, the jury could not fully consider and give effect to the mitigating evidence of his mental retardation and abused childhood in rendering its sentencing decision. The rule Page 492 U. S. 319 Penry seeks -- that when such mitigating evidence is presented, Texas juries must, upon request, be given jury instructions that make it possible for them to give effect to that mitigating evidence in determining whether the death penalty should be imposed -- is not a "new rule" under Teague, because it is dictated by Eddings and Lockett. Moreover, in light of the assurances upon which Jurek was based, we conclude that the relief Penry seeks does not "impos[e] a new obligation" on the State of Texas. Teague, 489 U.S. at 489 U. S. 301.Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sentencer is to make an individualized assessment of the appropriateness of the death penalty,"evidence 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, or to emotional and mental problems, may be less culpable than defendants who have no such excuse."California v. Brown, 479 U. S. 538, 479 U. S. 545 (1987) (O'CONNOR, J., concurring). Moreover, Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence. Hitchcock v. Dugger, 481 U. S. 393 (1987). Only then can we be sure that the sentencer has treated the defendant as a "uniquely individual human bein[g]," and has made a reliable determination that death is the appropriate sentence. Woodson, 428 U.S. at 428 U. S. 304, 428 U. S. 305."Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime."California v. Brown, supra, at 479 U. S. 545 (O'CONNOR, J., concurring) (emphasis in original). Page 492 U. S. 320Although Penry offered mitigating evidence of his mental retardation and abused childhood as the basis for a sentence of life imprisonment rather than death, the jury that sentenced him was only able to express its views on the appropriate sentence by answering three questions: Did Penry act deliberately when he murdered Pamela Carpenter? Is there a probability that he will be dangerous in the future? Did he act unreasonably in response to provocation? The jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence, and that it could give mitigating effect to that evidence in imposing sentence.Like the petitioner in Franklin v. Lynaugh,, Penry contends that, in the absence of his requested jury instructions, the Texas death penalty statute was applied in an unconstitutional manner by precluding the jury from acting upon the particular mitigating evidence he introduced. Franklin was the first case considered by this Court since Jurek to address a claim concerning the treatment of mitigating evidence under the Texas special issues. Like Jurek itself, Franklin did not produce a majority opinion for the Court. The Franklin plurality, and the two concurring Justices, concluded that Franklin was not sentenced to death in violation of the Eighth Amendment because the jury was free to give effect to his mitigating evidence of good behavior in prison by answering "no" to the question on future dangerousness. 487 U.S. at 487 U. S. 177 (plurality opinion); id. at 487 U. S. 185 (O'CONNOR, J., concurring in judgment). Moreover, a majority agreed that "residual doub[t]" as to Franklin's guilt was not a constitutionally mandated mitigating factor. Id. at 487 U. S. 173, and n. 6 (plurality opinion); id. at 487 U. S. 187-188 (O'CONNOR, J., concurring in judgment).In Franklin, however, the five concurring and dissenting Justices did not share the plurality's categorical reading of Jurek. In the plurality's view, Jurek had expressly and unconditionally upheld the manner in which mitigating evidence is considered under the special issues. Id. at 487 U. S. 179-180, and Page 492 U. S. 321 n. 10. In contrast, five Members of the Court read Jurek as not precluding a claim that, in a particular case, the jury was unable to fully consider the mitigating evidence introduced by a defendant in answering the special issues. Id. at 487 U. S. 183 (O'CONNOR, J., concurring in judgment); id. at 487 U. S. 199-200 (STEVENS, J., dissenting). Indeed, both the concurrence and the dissent understood Jurek as resting fundamentally on the express assurance that the special issues would permit the jury to fully consider all the mitigating evidence a defendant introduced that was relevant to the defendant's background and character and to the circumstances of the offense. Moreover, both the concurrence and the dissent stressed that"the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration"in imposing sentence. Id. at 487 U. S. 185 (O'CONNOR, J., concurring in judgment); id. at 487 U. S. 199 (STEVENS, J., dissenting).The concurrence in Franklin concluded that there was no Eighth Amendment violation in that case because Franklin's evidence of his good prison behavior had no clear relevance to his character other than to demonstrate his ability to live in a highly structured prison environment without endangering others. Thus, the jury was able to give effect to the mitigating force of this evidence in answering the second special issue. The concurrence noted, however:"If . . . petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its 'reasoned moral response' to that evidence. If this were such a case, then we would have to decide whether the jury's inability to give effect to that evidence amounted to an Eighth Amendment violation."Id. at 487 U. S. 185. Page 492 U. S. 322Penry argues that his mitigating evidence of mental retardation and childhood abuse has relevance to his moral culpability beyond the scope of the special issues, and that the jury was unable to express its "reasoned moral response" to that evidence in determining whether death was the appropriate punishment. We agree. Thus, we reject the State's contrary argument that the jury was able to consider and give effect to all of Penry's mitigating evidence in answering the special issues without any jury instructions on mitigating evidence.The first special issue asks whether the defendant acted "deliberately and with the reasonable expectation that the death of the deceased . . . would result." Neither the Texas Legislature nor the Texas Court of Criminal Appeals have defined the term "deliberately," and the jury was not instructed on the term, so we do not know precisely what meaning the jury gave to it. Assuming, however, that the jurors in this case understood "deliberately" to mean something more than that Penry was guilty of "intentionally" committing murder, those jurors may still have been unable to give effect to Penry's mitigating evidence in answering the first special issue.Penry's mental retardation was relevant to the question whether he was capable of acting "deliberately," but it also "had relevance to [his] moral culpability beyond the scope of the special verdict questio[n]." Franklin, 487 U.S. at 487 U. S. 185. Personal culpability is not solely a function of a defendant's capacity to act "deliberately." A rational juror at the penalty phase of the trial could have concluded, in light of Penry's confession, that he deliberately killed Pamela Carpenter to escape detection. Because Penry was mentally retarded, however, and thus less able than a normal adult to control his impulses or to evaluate the consequences of his conduct, and because of his history of childhood abuse, that same juror could also conclude that Penry was less morally "culpable than defendants who have no such excuse," but Page 492 U. S. 323 who acted "deliberately" as that term is commonly understood. California v. Brown, 479 U.S. at 479 U. S. 545 (O'CONNOR, J., concurring). See also Skipper v. South Carolina, 476 U. S. 1, 476 U. S. 13-14 (1986) (Powell, J., concurring in judgment) (evidence concerning a defendant's "emotional history . . . bear[s] directly on the fundamental justice of imposing capital punishment").In the absence of jury instructions defining "deliberately" in a way that would clearly direct the jury to consider fully Penry's mitigating evidence as it bears on his personal culpability, we cannot be sure that the jury was able to give effect to the mitigating evidence of Penry's mental retardation and history of abuse in answering the first special issue. Without such a special instruction, a juror who believed that Penry's retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that Penry committed the crime "deliberately." Thus, we cannot be sure that the jury's answer to the first special issue reflected a "reasoned moral response" to Penry's mitigating evidence.The second special issue asks"whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."The mitigating evidence concerning Penry's mental retardation indicated that one effect of his retardation is his inability to learn from his mistakes. Although this evidence is relevant to the second issue, it is relevant only as an aggravating factor, because it suggests a "yes" answer to the question of future dangerousness. The prosecutor argued at the penalty hearing that there was"a very strong probability, based on the history of this defendant, his previous criminal record, and the psychiatric testimony that we've had in this case, that the defendant will continue to commit acts of this nature."App. 214. Even in a prison setting, the prosecutor Page 492 U. S. 324 argued, Penry could hurt doctors, nurses, librarians, or teachers who worked in the prison.Penry's mental retardation and history of abuse is thus a two-edged sword: it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future. As Judge Reavley wrote for the Court of Appeals below:"What was the jury to do if it decided that Penry, because of retardation, arrested emotional development and a troubled youth, should not be executed? If anything, the evidence made it more likely, not less likely, that the jury would answer the second question yes. It did not allow the jury to consider a major thrust of Penry's evidence as mitigating evidence."832 F.2d at 925 (footnote omitted) (emphasis in original). The second special issue, therefore, did not provide a vehicle for the jury to give mitigating effect to Penry's evidence of mental retardation and childhood abuse.The third special issue asks"whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased."On this issue, the State argued that Penry stabbed Pamela Carpenter with a pair of scissors not in response to provocation, but "for the purpose of avoiding detection." App. 215. Penry's own confession indicated that he did not stab the victim after she wounded him superficially with a scissors during a struggle, but rather killed her after her struggle had ended and she was lying helpless. Even if a juror concluded that Penry's mental retardation and arrested emotional development rendered him less culpable for his crime than a normal adult, that would not necessarily diminish the "unreasonableness" of his conduct in response to "the provocation, if any, by the deceased." Thus, a juror who believed Penry lacked the moral culpability to be sentenced to death could not express that view in answering the third special issue if she also concluded Page 492 U. S. 325 that Penry's action was not a reasonable response to provocation.The State contends, notwithstanding the three interrogatories, that Penry was free to introduce and argue the significance of his mitigating circumstances to the jury. In fact, defense counsel did argue that, if a juror believed that Penry, because of the mitigating evidence of his mental retardation and abused background, did not deserve to be put to death, the juror should vote "no" on one of the special issues even if it believed the State had proved that the answer should be "yes." Thus, Penry's counsel stressed the evidence of Penry's mental retardation and abused background, and asked the jurors, "can you be proud to be a party to putting a man to death with that affliction?" App. 222. He urged the jury to answer the first special issue "no" because "it would be the just answer, and I think it would be a proper answer." Id. at 223. As for the prediction of the prosecution psychiatrist that Penry was likely to continue to get into trouble, the defense argued:"That may be true. But, a boy with this mentality, with this mental affliction, even though you have found that issue against us as to insanity, I don't think that there is any question in a single one of you juror's [sic] minds that there is something definitely wrong, basically, with this boy. And I think there is not a single one of you that doesn't believe that this boy had brain damage. . . ."Id. at 223-224. In effect, defense counsel urged the jury to"[t]hink about each of those special issues and see if you don't find that we're inquiring into the mental state of the defendant in each and every one of them."Id. at 221.In rebuttal, the prosecution countered by stressing that the jurors had taken an oath to follow the law, and that they must follow the instructions they were given in answering the special issues:"You've all taken an oath to follow the law, and you know what the law is. . . . In answering these questions based on the evidence and following the law, and that's all that Page 492 U. S. 326 I asked you to do, is to go out and look at the evidence. The burden of proof is on the State, as it has been from the beginning, and we accept that burden. And I honestly believe that we have more than met that burden, and that's the reason that you didn't hear Mr. Newman [defense attorney] argue. He didn't pick out these issues and point out to you where the State had failed to meet this burden. He didn't point out the weaknesses in the State's case because, ladies and gentlemen, I submit to you we've met our burden. . . . [Y]our job as jurors and your duty as jurors is not to act on your emotions, but to act on the law as the Judge has given it to you, and on the evidence that you have heard in this courtroom, then answer those questions accordingly."Id. at 225-226. In light of the prosecutor's argument, and in the absence of appropriate jury instructions, a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.The State conceded at oral argument in this Court that, if a juror concluded that Penry acted deliberately and was likely to be dangerous in the future, but also concluded that, because of his mental retardation, he was not sufficiently culpable to deserve the death penalty, that juror would be unable to give effect to that mitigating evidence under the instructions given in this case. Tr. of Oral Arg. 38. The State contends, however, that to instruct the jury that it could render a discretionary grant of mercy, or say "no" to the death penalty, based on Penry's mitigating evidence, would be to return to the sort of unbridled discretion that led to Furman v. Georgia, 408 U. S. 238 (1972). We disagree.To be sure, Furman held that,"in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority Page 492 U. S. 327 would focus on the particularized circumstances of the crime and the defendant."Gregg v. Georgia, 428 U. S. 153, 428 U. S. 199 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). But as we made clear in Gregg, so long as the class of murderers subject to capital punishment is narrowed, there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant. Id. at 428 U. S. 197-199, 428 U. S. 203. As JUSTICE WHITE wrote in Gregg:"The Georgia legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute, and I cannot accept the naked assertion that the effort is bound to fail. As the types of murders for which the death penalty may be imposed become more narrowly defined and are limited to those which are particularly serious or for which the death penalty is particularly appropriate, as they are in Georgia by reason of the aggravating-circumstance requirement, it becomes reasonable to expect that juries -- even given discretion not to impose the death penalty -- will impose the death penalty in a substantial portion of the cases so defined. If they do, it can no longer be said that the penalty is being imposed wantonly and freakishly or so infrequently that it loses its usefulness as a sentencing device."Id. at 428 U. S. 222 (opinion concurring in judgment)."In contrast to the carefully defined standards that must narrow a sentencer's discretion to impose the death sentence, the Constitution limits a State's ability to narrow a sentencer's discretion to consider relevant evidence that might cause it to decline to impose the death sentence."McCleskey v. Kemp, 481 U. S. 279, 481 U. S. 304 (1987) (emphasis in original). Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give Page 492 U. S. 328 effect to mitigating evidence relevant to a defendant's character or record or the circumstances of the offense. Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a "reasoned moral response to the defendant's background, character, and crime.'" Franklin, 487 U.S. at 487 U. S. 184 (O'CONNOR, J., concurring in judgment) (quoting California v. Brown, 479 U.S. at 479 U. S. 545 (O'CONNOR, J., concurring)). In order to ensure "reliability in the determination that death is the appropriate punishment in a specific case," Woodson, 428 U.S. at 428 U. S. 305, the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime.In this case, in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry's mental retardation and abused background by declining to impose the death penalty, we conclude that the jury was not provided with a vehicle for expressing its "reasoned moral response" to that evidence in rendering its sentencing decision. Our reasoning in Lockett and Eddings thus compels a remand for resentencing, so that we do not "risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty." Lockett, 438 U.S. at 438 U. S. 605; Eddings, 455 U.S. at 455 U. S. 119 (O'CONNOR, J., concurring)."When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments."Lockett, 438 U.S. at 438 U. S. 605.IVPenry's second claim is that it would be cruel and unusual punishment, prohibited by the Eighth Amendment, to execute a mentally retarded person like himself with the reasoning capacity of a 7-year-old. He argues that, because of their mental disabilities, mentally retarded people do not possess the level of moral culpability to justify imposing the death Page 492 U. S. 329 sentence. He also argues that there is an emerging national consensus against executing the retarded, and that existing procedural safeguards adequately protect the interests of mentally retarded persons such as Penry.AUnder Teague, we address the retroactivity issue as a threshold matter because Penry is before us on collateral review. 489 U.S. at 489 U. S. 310. If we were to hold that the Eighth Amendment prohibits the execution of mentally retarded persons such as Penry, we would be announcing a "new rule." Id. at 489 U. S. 301. Such a rule is not dictated by precedent existing at the time Penry's conviction became final. Moreover, such a rule would "brea[k] new ground," and would impose a new obligation on the States and the Federal Government. Ibid. (citing Ford v. Wainwight, 477 U. S. 399 (1986), which held that the Eighth Amendment prohibits the execution of insane persons, as a case announcing a new rule).In Teague, we concluded that a new rule will not be applied retroactively to defendants on collateral review unless it falls within one of two exceptions. Under the first exception articulated by Justice Harlan, a new rule will be retroactive if it places "certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe.'" Teague, 489 U.S. at 489 U. S. 307 (quoting Mackey, 401 U.S. at 401 U. S. 692 (Harlan, J., concurring in judgments in part and dissenting in part)). Although Teague reads this exception as focusing solely on new rules according constitutional protection to an actor's primary conduct, Justice Harlan did speak in terms of substantive categorical guarantees accorded by the Constitution, regardless of the procedures followed. This Court subsequently held that the Eighth Amendment, as a substantive matter, prohibits imposing the death penalty on a certain class of defendants because of their Page 492 U. S. 330 status, Ford v. Wainwright, supra, at 477 U. S. 410 (insanity), or because of the nature of their offense, Coker v. Georgia, 433 U. S. 584 (1977) (rape) (plurality opinion). In our view, a new rule placing a certain class of individuals beyond the State's power to punish by death is analogous to a new rule placing certain conduct beyond the State's power to punish at all. In both cases, the Constitution itself deprives the State of the power to impose a certain penalty, and the finality and comity concerns underlying Justice Harlan's view of retroactivity have little force. As Justice Harlan wrote: "There is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose." Mackey, 401 U.S. at 401 U. S. 693. Therefore, the first exception set forth in Teague should be understood to cover not only rules forbidding criminal punishment of certain primary conduct, but also rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. Thus, if we held, as a substantive matter, that the Eighth Amendment prohibits the execution of mentally retarded persons such as Penry regardless of the procedures followed, such a rule would fall under the first exception to the general rule of nonretroactivity and would be applicable to defendants on collateral review. Accordingly, we address the merits of Penry's claim.BThe Eighth Amendment categorically prohibits the infliction of cruel and unusual punishments. At a minimum, the Eighth Amendment prohibits punishment considered cruel and unusual at the time the Bill of Rights was adopted. Ford v. Wainwright, supra, at 477 U. S. 405; Solem v. Helm, 463 U. S. 277, 462 U. S. 285-286 (1983). The prohibitions of the Eighth Amendment are not limited, however, to those practices condemned by the common law in 1789. Ford, supra, at 477 U. S. 406; Gregg v. Georgia, 428 U.S. at 428 U. S. 171. The prohibition against cruel and unusual punishments also recognizes the "evolving standards Page 492 U. S. 331 of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 356 U. S. 101 (1958) (plurality opinion); Ford, supra, at 477 U. S. 406. In discerning those "evolving standards," we have looked to objective evidence of how our society views a particular punishment today. See Coker v. Georgia, 433 U.S. at 433 U. S. 593-597; Enmund v. Florida, 458 U. S. 782, 458 U. S. 788-796 (1982). The clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures. We have also looked to data concerning the actions of sentencing juries. Enmund, supra, at 458 U. S. 794-796; Thompson v. Oklahoma, 487 U. S. 815, 487 U. S. 831 (1988) (plurality opinion).It was well settled at common law that "idiots," together with "lunatics," were not subject to punishment for criminal acts committed under those incapacities. As Blackstone wrote:"The second case of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz. in an idiot or a lunatic. . . . [I]diots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. . . . [A] total idiocy, or absolute insanity, excuses from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses. . . ."4 W. Blackstone, Commentaries *24-*25 (emphasis in original). See also 1 W. Hawkins, Pleas of the Crown 1-2 (7th ed. 1795) ("[T]hose who are under a natural disability of distinguishing between good and evil, as . . . ideots, and lunaticks are not punishable by any criminal prosecution whatsoever"). Idiocy was understood as "a defect of understanding from the moment of birth," in contrast to lunacy, which was "a partial derangement of the intellectual faculties, the senses returning at uncertain intervals." Id. at 2, n. 2.There was no one definition of idiocy at common law, but the term "idiot" was generally used to describe persons who Page 492 U. S. 332 had a total lack of reason or understanding, or an inability to distinguish between good and evil. Hale wrote that a person who is deaf and mute from birth"is in presumption of law an ideot . . . because he hath no possibility to understand what is forbidden by law to be done, or under what penalties: but if it can appear, that he hath the use of understanding, . . . then he may be tried, and suffer judgment and execution."M. Hale, Pleas of the Crown 34 (1736) (footnote omitted). See also id. at 29 (citing A. Fitzherbert, 2 Natura Brevium 233 (9th ed. 1794)); Trial of Edward Arnold, 16 How.St.Tr. 695, 765 (Eng.1724) ("[A] man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment"); S. Glueck, Mental Disorder and the Criminal Law 128-144 (1925).The common law prohibition against punishing "idiots" and "lunatics" for criminal acts was the precursor of the insanity defense, which today generally includes "mental defect" as well as "mental disease" as part of the legal definition of insanity. See, e.g., American Law Institute, Model Penal Code §4.01, p. 61 (1985) ("A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law"); 18 U.S. C. §17 (1982 ed., Supp. V) (it is an affirmative defense to federal prosecution if "the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts" at the time the offense was committed). See generally Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo.Wash.L.Rev. 414, 432-444 (1985).In its emphasis on a permanent, congenital mental deficiency, the old common law notion of "idiocy" bears some similarity to the modern definition of mental retardation. Ellis & Luckasson, supra, at 417. The common law prohibition Page 492 U. S. 333 against punishing "idiots" generally applied, however, to persons of such severe disability that they lacked the reasoning capacity to form criminal intent or to understand the difference between good and evil. In the 19th and early 20th centuries, the term "idiot" was used to describe the most retarded of persons, corresponding to what is called "profound" and "severe" retardation today. See AAMR, Classification in Mental Retardation 179 (H. Grossman ed. 1983); id. at 9 ("idiots" generally had IQ of 25 or below).The common law prohibition against punishing "idiots" for their crimes suggests that it may indeed be "cruel and unusual" punishment to execute persons who are profoundly or severely retarded and wholly lacking the capacity to appreciate the wrongfulness of their actions. Because of the protections afforded by the insanity defense today, such a person is not likely to be convicted or face the prospect of punishment. See ABA Standards for Criminal Justice 7-9.1, commentary, p. 460 (2d ed. 1980) (most retarded people who reach the point of sentencing are mildly retarded). Moreover, under Ford v. Wainwright, 477 U. S. 399 (1986), someone who is "unaware of the punishment they are about to suffer and why they are to suffer it" cannot be executed. Id. at 477 U. S. 422 (Powell, J., concurring in part and concurring in judgment).Such a case is not before us today. Penry was found competent to stand trial. In other words, he was found to have the ability to consult with his lawyer with a reasonable degree of rational understanding, and was found to have a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U. S. 402 (1960); App. 20-24. In addition, the jury rejected his insanity defense, which reflected their conclusion that Penry knew that his conduct was wrong, and was capable of conforming his conduct to the requirements of the law. Tex.Penal Code Ann. §8.01(a) (1974 and Supp. 1989).Penry argues, however, that there is objective evidence today of an emerging national consensus against execution of Page 492 U. S. 334 the mentally retarded, reflecting the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. at 356 U. S. 101. Brief for Petitioner 37-39. The federal Anti-Drug Abuse Act of 1988, Pub.L. 100-690, § 7001(1), 102 Stat. 4390, 21 U.S.C. §848(1) (1988 ed.), prohibits execution of a person who is mentally retarded. Only one State, however, currently bans execution of retarded persons who have been found guilty of a capital offense. Ga.Code Ann. §17-7-131(j) (Supp.1988). Maryland has enacted a similar statute which will take effect on July 1, 1989. Md.Ann.Code, Art. 27, §412(f)(1) (1989).In contrast, in Ford v. Wainwright, which held that the Eighth Amendment prohibits execution of the insane, considerably more evidence of a national consensus was available. No State permitted the execution of the insane, and 26 States had statutes explicitly requiring suspension of the execution of a capital defendant who became insane. Ford, 477 U.S. at 477 U. S. 408, n. 2. Other States had adopted the common law prohibition against executing the insane. Ibid. Moreover, in examining the objective evidence of contemporary standards of decency in Thompson v. Oklahoma, the plurality noted that 18 States expressly established a minimum age in their death penalty statutes, and all of them required that the defendant have attained at least the age of 16 at the time of the offense. 487 U.S. at 487 U. S. 829, and n. 30. In our view, the two state statutes prohibiting execution of the mentally retarded, even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.Penry does not offer any evidence of the general behavior of juries with respect to sentencing mentally retarded defendants, nor of decisions of prosecutors. He points instead to several public opinion surveys that indicate strong public opposition to execution of the retarded. For example, a poll taken in Texas found that 86% of those polled supported the death penalty, but 73% opposed its application to the mentally Page 492 U. S. 335 retarded. Reply Brief for Petitioner 6-7; Austin American Statesman, November 15, 1988, p. B3. A Florida poll found 71% of those surveyed were opposed to the execution of mentally retarded capital defendants, while only 12% were in favor. Brief for Petitioner 38; App. 279. A Georgia poll found 66% of those polled opposed to the death penalty for the retarded, 17% in favor, with 16% responding that it depends how retarded the person is. Brief for Petitioner 38; App. 283. In addition, the AAMR, the country's oldest and largest organization of professionals working with the mentally retarded, opposes the execution of persons who are mentally retarded. AAMR, Resolution on Mental Retardation and the Death Penalty, January 1988, App. to Brief for American Association on Mental Retardation et al. as Amici Curiae la-2a (hereafter Amici Brief for AAMR et al.). The public sentiment expressed in these and other polls and resolutions may ultimately find expression in legislation, which is an objective indicator of contemporary values upon which we can rely. But at present, there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment.CRelying largely on objective evidence such as the judgments of legislatures and juries, we have also considered whether application of the death penalty to particular categories of crimes or classes of offenders violates the Eighth Amendment because it"makes no measurable contribution to acceptable goals of punishment, and hence is nothing more than the purposeless and needless imposition of pain and suffering"or because it is "grossly out of proportion to the severity of the crime." Coker v. Georgia, 433 U.S. at 433 U. S. 592 (plurality opinion); Thompson v. Oklahoma, 487 U.S. at 833 (plurality opinion); Tison v. Arizona, 481 U. S. 137 (1987); Enmund v. Florida, 458 U.S. at 458 U. S. 798-801. Gregg noted Page 492 U. S. 336 that"[t]he death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders."Gregg v. Georgia, 428 U.S. at 428 U. S. 183 (joint opinion of Stewart, Powell, and STEVENS, JJ.)."The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender."Tison v. Arizona, supra, at 481 U. S. 149. See also Enmund, supra, at 458 U. S. 825 (O'CONNOR, J., dissenting) (the Eighth Amendment concept of "proportionality requires a nexus between the punishment imposed and the defendant's blameworthiness").Penry argues that execution of a mentally retarded person like himself with a reasoning capacity of approximately a 7-year-old would be cruel and unusual because it is disproportionate to his degree of personal culpability. Brief for Petitioner 49-50. Just as the plurality in Thompson reasoned that a juvenile is less culpable than an adult for the same crime, 487 U.S. at 487 U. S. 835, Penry argues that mentally retarded people do not have the judgment, perspective, and self-control of a person of normal intelligence. In essence, Penry argues that, because of his diminished ability to control his impulses, to think in long-range terms, and to learn from his mistakes, he "is not capable of acting with the degree of culpability that can justify the ultimate penalty," id. at 487 U. S. 823.The AAMR and other groups working with the mentally retarded agree with Penry. They argue as amici that all mentally retarded people, regardless of their degree of retardation, have substantial cognitive and behavioral disabilities that reduce their level of blameworthiness for a capital offense. Amici Brief for AAMR et al. 5-9, 13-15. Amici do not argue that people with mental retardation cannot be held responsible or punished for criminal acts they commit. Rather, they contend that, because of"disability in the areas of cognitive impairment, moral reasoning, control of impulsivity, and the ability to understand basic relationships between cause and effect,"mentally retarded people cannot act Page 492 U. S. 337 with the level of moral culpability that would justify imposition of the death sentence. Id. at 4. Thus, in their view, execution of mentally retarded people convicted of capital offenses serves no valid retributive purpose. Id. at 19.It is clear that mental retardation has long been regarded as a factor that may diminish an individual's culpability for a criminal act. See supra, at 492 U. S. 331-333; ABA Standards for Criminal Justice 7-9.3, commentary, at 463; State v. Hall, 176 Neb. 295, 310, 125 N.W.2d 918, 927 (1964). See generally Ellis & Luckasson, 53 Geo.Wash.L.Rev. at 414. In its most severe forms, mental retardation may result in complete exculpation from criminal responsibility. Moreover, virtually all of the States with death penalty statutes that list statutory mitigating factors include as a mitigating circumstance evidence that"[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. [Footnote 2]"A number of States explicitly mention "mental defect" in connection with such a mitigating circumstance. [Footnote 3] Indeed, as the Court holds in 492 U. S. the sentencing body must be allowed to consider mental retardation Page 492 U. S. 338 as a mitigating circumstance in making the individualized determination whether death is the appropriate punishment in a particular case.On the record before the Court today, however, I cannot conclude that all mentally retarded people of Penry's ability -- by virtue of their mental retardation alone, and apart from any individualized consideration of their personal responsibility -- inevitably lack the cognitive, volitional, and moral capacity to act with the degree of culpability associated with the death penalty. Mentally retarded persons are individuals whose abilities and experiences can vary greatly. As the AAMR's standard work, Classification in Mental Retardation, points out:"The term mental retardation, as commonly used today, embraces a heterogeneous population, ranging from totally dependent to nearly independent people. Although all individuals so designated share the common attributes of low intelligence and inadequacies in adaptive behavior, there are marked variations in the degree of deficit manifested and the presence or absence of associated physical handicaps, stigmata, and psychologically disordered states."Classification in Mental Retardation, at 12. In addition to the varying degrees of mental retardation, the consequences of a retarded person's mental impairment, including the deficits in his or her adaptive behavior, "may be ameliorated through education and habilitation." Ellis & Luckasson, supra, at 424, n. 54. Although retarded persons generally have difficulty learning from experience, Amici Brief for AAMR et al. 7, some are fully "capable of learning, working, and living in their communities." Id. at 6. See American Association on Mental Deficiency, Monograph 6, Lives in Process: Mildly Retarded Adults in a Large City (R. Edgerton ed. 1984). In light of the diverse capacities and life experiences of mentally retarded persons, it cannot be said on the record before us today that all mentally retarded Page 492 U. S. 339 people, by definition, can never act with the level of culpability associated with the death penalty.Penry urges us to rely on the concept of "mental age," and to hold that execution of any person with a mental age of seven or below would constitute cruel and unusual punishment. Tr. of Oral Arg. 22-25. Mental age is "calculated as the chronological age of nonretarded children whose average IQ test performance is equivalent to that of the individual with mental retardation." Amici Brief for AAMR et al. 14, n. 6. See D. Wechsler, The Measurement and Appraisal of Adult Intelligence 24-25 (4th ed. 1958). Such a rule should not be adopted today. First, there was no finding below by the judge or jury concerning Penry's "mental age." One of Penry's expert witnesses, Dr. Brown, testified that he estimated Penry's "mental age" to be 6 1/2. App. 41. That same expert estimated that Penry's "social maturity" was that of a 9- or 10-year-old. Ibid. As a more general matter, the "mental age" concept, irrespective of its intuitive appeal, is problematic in several respects. As the AAMR acknowledges, "[t]he equivalence between nonretarded children and retarded adults is, of course, imprecise." Amici Brief for AAMR et al. 14, n. 6. The "mental age" concept may underestimate the life experiences of retarded adults, while it may overestimate the ability of retarded adults to use logic and foresight to solve problems. Ibid. The mental age concept has other limitations as well. Beyond the chronological age of 15 or 16, the mean scores on most intelligence tests cease to increase significantly with age. Wechsler, supra, at 26. As a result, "[t]he average mental age of the average 20-year-old is not 20, but 15 years." Id. at 27. See also In re Ramon M., 22 Cal. 3d 419, 429, 584 P.2d 524, 531 (1978) ("[T]he mental age' of the average adult under present norms is approximately 16 years and 8 months").Not surprisingly, courts have long been reluctant to rely on the concept of mental age as a basis for exculpating a defendant from criminal responsibility. See, e.g., In re Page 492 U. S. 340 Ramon M., supra, at 531; State v. Schilling, 95 N.J.L. 145, 148, 112 A. 400, 402 (1920); People v. Marquis, 344 Ill. 261, 267, 176 N.E. 314, 316 (1931); Chriswell v. State, 171 Ark. 255, 259, 283 S.W. 981, 983 (1926). Cf. Pickett v. State, 71 So. 2d 102, 107 (Ala.1954). See generally Ellis & Luckasson, 53 Geo.Wash.L.Rev., at 435. Moreover, reliance on mental age to measure the capabilities of a retarded person for purposes of the Eighth Amendment could have a disempowering effect if applied in other areas of the law. Thus, on that premise, a mildly mentally retarded person could be denied the opportunity to enter into contracts or to marry by virtue of the fact that he had a "mental age" of a young child. In light of the inherent problems with the mental age concept, and in the absence of better evidence of a national consensus against execution of the retarded, mental age should not be adopted as a line-drawing principle in our Eighth Amendment jurisprudence.In sum, mental retardation is a factor that may well lessen a defendant's culpability for a capital offense. But we cannot conclude today that the Eighth Amendment precludes the execution of any mentally retarded person of Penry's ability convicted of a capital offense simply by virtue of his or her mental retardation alone. So long as sentencers can consider and give effect to mitigating evidence of mental retardation in imposing sentence, an individualized determination whether "death is the appropriate punishment" can be made in each particular case. While a national consensus against execution of the mentally retarded may someday emerge reflecting the "evolving standards of decency that mark the progress of a maturing society," there is insufficient evidence of such a consensus today.Accordingly, the judgment below is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.It is so ordered | U.S. Supreme CourtPenry v. Lynaugh, 492 U.S. 302 (1989)Penry v. LynaughNo. 87-6177Argued January 11, 1989Decided June 26, 1989492 U.S. 302SyllabusPetitioner was charged with capital murder in Texas state court. He was found competent to stand trial, although a psychologist testified that he was mildly to moderately retarded and had the mental age of a 6 1/2-year-old. At the guilt-innocence phase of the trial, petitioner raised an insanity defense and presented psychiatric testimony that he suffered from a combination of organic brain damage and moderate retardation which resulted in poor impulse control and an inability to learn from experience. His evidence also indicated that he had been abused as a child. The State introduced testimony that petitioner was legally sane, but had an antisocial personality. The jury rejected petitioner's insanity defense and found him guilty of capital murder. At the penalty phase of the trial, the sentencing jury was instructed to consider all the evidence introduced at trial in answering the following "special issues": (1) whether petitioner's conduct was committed deliberately and with the reasonable expectation that death would result; (2) whether there was a probability that he would be a continuing threat to society; and (3) whether the killing was unreasonable in response to any provocation by the victim. The trial court rejected petitioner's request for jury instructions defining the terms in the special issues and authorizing a grant of mercy based upon the existence of mitigating circumstances. The jury answered "yes" to each special issue, and, as required by Texas law, the court therefore sentenced petitioner to death. A "no" answer to any of the special issues would have required a sentence of life imprisonment. The Texas Court of Criminal Appeals affirmed, rejecting petitioner's contentions that his death sentence violated the Eighth Amendment first, because the jury was not adequately instructed to consider all of his mitigating evidence and because the special issues' terms were not defined in such a way that the jury could consider and give effect to that evidence in answering them; and, second, because it is cruel and unusual punishment to execute a mentally retarded person with petitioner's mental ability. After this Court denied certiorari on direct review, the Federal District Court and the Court of Appeals upheld petitioner's death sentence in habeas corpus proceedings. Although it denied him relief, the Court of Appeals nevertheless found considerable merit in petitioner's claim that Page 492 U. S. 303 his mitigating evidence of mental retardation and childhood abuse could not be given effect by the jury, under the instructions given, in answering the special issues.Held: The judgment is affirmed in part and reversed in part, and the case is remanded.832 F.2d 915, affirmed in part, reversed in part, and remanded.JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II-A, II-B, III, IV-A, and IV-B, concluding that:1. Granting petitioner relief on his claim that, when mitigating evidence of mental retardation and an abused childhood is presented, Texas juries must, upon request, be given instructions that allow them to give effect to that mitigating evidence in determining whether to impose the death penalty, would not create a "new rule" which, under Teague v. Lane, 489 U. S. 288, 489 U. S. 301, may not generally be applied or announced in cases on collateral review. Pp. 492 U. S. 313-319.(a) The Teague rule of nonretroactivity and its two exceptions are applicable in the capital sentencing context. A criminal judgment includes the sentence imposed, and collateral challenges to sentences foster delay and undermine the finality concerns underlying Teague's rule of nonretroactivity. Pp. 492 U. S. 313-314.(b) Under Teague, a case announces a "new rule" when it breaks new ground or imposes a new obligation on the States or the Federal Government, or if the result is not dictated by precedent which existed at the time the defendant's conviction became final. Id. at 489 U. S. 301. Here, since Lockett v. Ohio, 438 U. S. 586, and Eddings v. Oklahoma, 455 U. S. 104, were decided before petitioner's conviction became final when this Court denied his certiorari petition on direct review, he is entitled to the benefit of those decisions under Griffith v. Kentucky, 479 U. S. 314. The rule that petitioner seeks does not impose a new obligation on Texas, because Jurek v. Texas, 428 U. S. 262, upheld the Texas death penalty statute on the basis of assurances that the special issues would be interpreted broadly enough to permit the jury to consider all of the relevant mitigating evidence a defendant might present in imposing sentence. Moreover, the rule that petitioner seeks in this case is dictated by Eddings and Lockett, which established that a State cannot, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or to the circumstances of the offense that mitigates against imposing the death penalty. Pp. 492 U.S. 314-319.2. The absence of instructions informing the jury that it could consider and give effect to petitioner's mitigating evidence of mental retardation and abused background by declining to impose the death penalty Page 492 U. S. 304 compels the conclusion that the jury was not provided with a vehicle for expressing its "reasoned moral response" to that evidence in rendering its sentencing decision, as is required by the Eighth and Fourteenth Amendments under Lockett, Eddings, and subsequent decisions. Those decisions are based on the principle that punishment must be directly related to the defendant's personal culpability, and that a defendant who commits crimes attributable to a disadvantaged background or emotional and mental problems may be less culpable than one who has no such excuse. Here, although petitioner was permitted to introduce and argue the significance of his mitigating evidence to the jury, the jury instructions did not permit the jury to give effect to that evidence in answering the three special issues. As to the first such issue, without a special instruction defining "deliberately" in a way that would clearly direct the jury to fully consider petitioner's mitigating evidence as it bears on his moral culpability, a juror who believed that that evidence made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that petitioner committed the crime "deliberately." Nor did the second special issue provide a vehicle for the jury to give mitigating effect to petitioner's evidence of mental retardation and childhood abuse; to the contrary, the evidence concerning his inability to learn from his mistakes by virtue of his mental retardation actually suggests that he will be dangerous in the future. Although such evidence may lessen his blameworthiness, it made an affirmative answer to the second issue more likely. Furthermore, a juror who believed that petitioner lacked the moral culpability to be sentenced to death could not express that view in answering the third special issue if the juror also believed that his conduct was not a reasonable response to provocation by the victim. There is no merit to the State's contention that to instruct the jury that it could decline to impose the death penalty based on petitioner's mitigating evidence would allow it the sort of unbridled discretion prohibited by Furman v. Georgia, 408 U. S. 238. As Gregg v. Georgia, 428 U. S. 153, made clear, so long as the class of murderers subject to capital punishment is narrowed, there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant. Furthermore, because the punishment imposed should be directly related to the personal culpability of the defendant, the sentencer must be allowed to consider and give effect to mitigating evidence relevant to a defendant's background, character, and crime. Full consideration of such mitigating evidence enhances the reliability of the jury's sentencing decision. Pp. 492 U. S. 319-328. Page 492 U. S. 3053. The Eighth Amendment does not categorically prohibit the execution of mentally retarded capital murderers of petitioner's reasoning ability. Pp. 492 U. S. 328-335.(a) Although granting petitioner relief on this issue would create a "new rule" within the meaning of Teague, supra, that rule would fall within the first exception to Teague's general rule of nonretroactivity. That exception applies not only to new rules that place certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe. It also applies to new rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. Cf., e.g., Ford v. Wainwright, 477 U. S. 399, 477 U. S. 410. Pp. 492 U. S. 329-330.(b) The Eighth Amendment's categorical prohibition upon the infliction of cruel and unusual punishment applies to practices condemned by the common law at the time the Bill of Rights was adopted, as well as to punishments which offend our society's evolving standards of decency as expressed in objective evidence of legislative enactments and the conduct of sentencing juries. Since the common law prohibited the punishment of "idiots" -- which term was generally used to describe persons totally lacking in reason, understanding, or the ability to distinguish between good and evil -- it may indeed be "cruel and unusual punishment" to execute persons who are profoundly or severely retarded and wholly lacking in the capacity to appreciate the wrongfulness of their actions. Such persons, however, are not likely to be convicted or face the prospect of punishment today, since the modern insanity defense generally includes "mental defect" as part of the legal definition of insanity, and since Ford v. Wainwright, supra, prohibits the execution of persons who are unaware of their punishment and why they must suffer it. Moreover, petitioner is not such a person, since the jury (1) found him competent to stand trial, and therefore to have a rational as well as factual understanding of the proceedings; and (2) rejected his insanity defense, thereby reflecting the conclusion that he knew his conduct was wrong and was capable of conforming it to the requirements of law. Nor is there sufficient objective evidence today of a national consensus against executing mentally retarded capital murderers, since petitioner has cited only one state statute that explicitly bans that practice, and has offered no evidence of the general behavior of juries in this regard. Opinion surveys indicating strong public opposition to such executions do not establish a societal consensus, absent some legislative reflection of the sentiment expressed therein. Pp. 492 U. S. 330-335.JUSTICE O'CONNOR concluded in Part IV-C that, on the present record, it cannot be said that executing capital murderers who are mentally retarded violates the Eighth Amendment's proportionality requirement. Page 492 U. S. 306 To be sure, retardation has long been regarded as a factor that may diminish culpability, and, in its most severe form, may result in complete exculpation. Moreover, most States with death penalty statutes that list mitigating factors include reduced mental capacity as a mitigating circumstance, and this Court holds today that the sentencing body must be allowed to consider retardation in making the individualized determination whether the death penalty is appropriate. Mentally retarded persons, however, are individuals whose abilities and behavioral deficits can vary greatly depending on the degree of their retardation, their life experience, and the ameliorative effects of education and habilitation. On the present record, it cannot be said that all mentally retarded people of petitioner's ability -- by virtue of their mental retardation alone, and apart from any individualized consideration of their personal responsibility -- inevitably lack the cognitive, volitional, and moral capacity to act with the degree of culpability associated with the death penalty. Moreover, the concept of "mental age" is an insufficient basis for a categorical Eighth Amendment rule, since it is imprecise, does not adequately account for individuals' varying experiences and abilities, ceases to change after a person reaches the chronological age of 15 or 16, and could have a disempowering effect if applied to retarded persons in other areas of the law, such as the opportunity to enter contracts or to marry. Pp. 492 U. S. 335-340.O'CONNOR, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and IV-A, the opinion of the Court with respect to Parts II-B and III, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, the opinion of the Court with respect to Parts II-A and IV-B, in which REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Part IV-C. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 492 U. S. 341. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BLACKMUN, J., joined, post, p. 492 U. S. 349. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and KENNEDY, JJ., joined, post, p. 492 U. S. 350. Page 492 U. S. 307 |
337 | 1966_305 | MR JUSTICE BRENNAN delivered the opinion of the Court.The question in this case is whether the Interstate Commerce Commission complied with its statutory responsibilities under § 20a of the Interstate Commerce Act [Footnote 1] when it approved, without consideration of control or anticompetitive consequences, the issuance to appellee Greyhound Corporation of 500,000 shares of the common stock of appellee Railway Express Agency, Inc. (REA).REA provides railroad express service and is also a motor common carrier. The approximately 2,000,000 shares of REA common stock outstanding are entirely owned by railroads, and no railroad stockholder may dispose of its shares without first offering them to the other railroad stockholders. REA also is authorized, however, to issue 500,000 additional shares of common stock without first offering them to its stockholders. Greyhound, which operates an express carrier service through its wholly owned subsidiary Greyhound Lines, Inc., a motor carrier of passengers and express subject to the Interstate Page 387 U. S. 488 Commerce Act, agreed to purchase these 500,000 shares. REA thereupon applied to the ICC for an order under § 20a approving the transaction. Minority railroad REA stockholders, motor bus competitors of Greyhound, motor carriers, and freight forwarders intervened in the proceeding to protest against approval of the transaction. They alleged, among other things, the necessity of a hearing on the questions whether Greyhound's acquisition of the stock was in the "public interest" and for a "lawful object," as those terms are used in § 20a. The ICC approved the acquisition without a hearing. A three-judge District Court for the District of Colorado sustained the ICC order. 255 F. Supp. 704. We noted probable jurisdiction. 385 U.S. 897. We reverse with direction to the District Court to enter a new judgment remanding the case to the ICC for further proceedings consistent with this opinion.IREA was organized in 1929, and, until 1961, operated on a nonprofit basis under a pooling agreement with the railroads. See Securities and Acquisition of Control of Railway Express Agency, Inc., 150 I.C.C. 423. Financial difficulties forced abandonment of the nonprofit operation, and REA was converted to a profit and loss basis in order to effect more efficient and economic operation. See Express Contract, 1959, 308 I.C.C. 545, 549-550. In addition, REA was released from restrictions against use of carriers other than railroads. In 1963, REA's bylaws were amended to eliminate a limitation against stock ownership except by railroads; the disposition of shares by a railroad, however, was made subject to the right of first refusal of the other railroad stockholders. The issuance of 500,000 additional shares not subject to the right of first refusal was also authorized, but only upon the consent of two-thirds of the railroad stockholders. Page 387 U. S. 489Greyhound, principally a passenger carrier, became interested in expanding its growing express business. In January, 1964, Greyhound offered to purchase, subject to ICC approval, at least 67% of REA's stock, of which Greyhound intended to offer 16% to major airlines. Greyhound also agreed to finance part of REA's capital requirements as part of a plan to coordinate the express services of both companies. This proposal was defeated by railroad stockholders.REA and Greyhound persisted in their efforts to coordinate their operations. Greyhound proposed to acquire a 20% interest in REA through acquisition of REA's 500,000 authorized but unissued shares, stating that its"interest in REA . . . stems primarily from our views as to the improvements . . . which could be realized through combination and correlation of certain of our facilities and services."Greyhound offered to pay $16 per share if permitted to name one-fifth of the REA Board of Directors and if the REA Board would declare its intention "to consider seriously and work toward a long-term agreement between REA and Greyhound to consolidate operating functions and facilities . . . ," and if, further, the REA Board would agree "to consider seriously at a later time . . ." the sale of REA stock to airlines and the general public. Finally, Greyhound offered, if permitted to acquire the 500,000 shares, to purchase enough additional shares at $25 each to give it 50% of the stock of REA, the offer to remain open for 60 days following Greyhound's acquisition of the 500,000 shares. It expressed willingness, however, to purchase the 500,000 shares and leave"to the future the question of the acquisition of additional shares by Greyhound and giving the railroads an opportunity to reconcile their views on this question."REA countered with an offer to sell the 500,000 shares at $20 per share provided Greyhound would agree to Page 387 U. S. 490 offer within the 60-day period to purchase an additional 1,000,000 shares of the outstanding stock at the same price. The agreement was consummated on this basis subject to ICC approval.REA's application to the ICC sought approval only of the issuance to Greyhound of the 500,000 shares. The application was supplemented with detailed data reviewing the negotiations, a statement of REA's financial condition, and a statement of the purposes to which the $10,000,000 realized from the sale of the 500,000 shares would be applied. The burden of the protests of numerous intervenors was that the transaction was not in the "public interest" and for a "lawful object," but rather was the first step toward establishing a virtual monopoly of express transportation, and would result in "control" by Greyhound of REA, necessitating a hearing under § 5 of the Act. [Footnote 2] The Department of Justice also intervened. It urged the ICC to conduct a hearing to determine whether the transaction would violate § 7 of the Clayton Act, [Footnote 3] suggesting that, while a § 5 proceeding might be Page 387 U. S. 491 unnecessary, one might be instituted and consolidated with the recommended Clayton Act § 7 proceeding, since the anticompetitive issues involved would be virtually identical.Division Three of the ICC approved the application without hearing, ruling that investigation into the "control" and "anticompetitive" issues "would not be appropriate at this time. . . ." After the ICC denial of petitions for reconsideration, this action to enjoin and set aside the ICC order was filed. The full Commission meanwhile reconsidered and affirmed the action of Division Three, but postponed the effective date of the order pending the conclusion of judicial proceedings.In the District Court, the parties adhered basically to the positions maintained before the ICC, except that the Department of Justice abandoned its position urging a hearing on the § 7 question and declined either to support or to oppose the ICC order. In sustaining the order, the District Court reasoned that, while the ICC might be required in some circumstances to consider "control" and "anticompetitive" issues before approving a stock issuance under § 20a, the ICC properly exercised discretion to defer consideration of such questions in this case until after it was determined whether and to what extent Greyhound would succeed in purchasing additional shares from railroad stockholders; only then would the "chain of events started by the stock issuance . . . [be] ascertainable, rather than conjectural." 255 F. Supp. 704, 709.In this Court the Government concedes, and the other appellees assume arguendo, that important issues of "control" and "anticompetitive" effects were involved in the application before the ICC. The Government has completely reversed its position from what it was before Page 387 U. S. 492 the ICC, arguing here that § 20a was designed to accomplish only the limited objective of protecting stockholders and the public from fiscal manipulation, and that, in any event, postponement of consideration of "control" and "anticompetitive" issues was justified in this case because the facts relevant to both issues might be wholly different at the end of the 60-day period, and because no prejudice to any party's interests could result from the delay.IIWe do not agree that Congress limited ICC consideration under § 20a to an inquiry into fiscal manipulation. [Footnote 4] Even if Congress' primary concern was to prevent such manipulation, the broad terms "public interest" and "lawful object" negate the existence of a mandate to the ICC to close its eyes to facts indicating that the transaction may exceed limitations imposed by other relevant laws. Common sense and sound administrative policy point to the conclusion that such broad statutory standards require at least some degree of consideration of control and anticompetitive consequences when suggested by the circumstances surrounding a particular transaction. Both the ICC and this Court have read terms such as "public interest" broadly, to require consideration of all important consequences including anticompetitive effects. Thus, the ICC is required to weigh anticompetitive effects in approving applications for merger or control under § 5 of the Act, authorizing the ICC to grant such applications Page 387 U. S. 493 only if "consistent with the public interest." McLean Trucking Co. v. United States, 321 U. S. 67. And similarly broad responsibilities are encompassed within like broad directives addressed to other agencies. E.g., National Broadcasting Co. v. United States, 319 U. S. 190, 319 U. S. 224; FCC v. RCA Communications, Inc., 346 U. S. 86, 346 U. S. 94; California v. FPC, 369 U. S. 482, 369 U. S. 484-485.It is true that the requirement that the ICC consider anticompetitive effects is more readily found under § 5, since § 5(11) enables the ICC to confer immunity from the antitrust laws for transactions approved under § 5(2). [Footnote 5] But the foundations of the ICC's obligation under § 5 are largely applicable to 20a as well. Section 20a, like § 5, must, after all, be read in the context of overall ICC responsibilities. The responsibility under § 11 of the Clayton Act [Footnote 6] to enforce that Act's provisions is one of them. The responsibility to advance the National Transportation Policy, read into the "public interest" standard of § 5, is another persistent and overriding duty, equally applicable to § 20a. In sum, as we said in McLean Trucking, supra, while transportation"legislation constitutes the immediate frame of reference within Page 387 U. S. 494 which the Commission operates . . . and the policies expressed in it must be the basic determinants of its action . . . , in executing those policies, the Commission may be faced with overlapping and at times inconsistent policies embodied in other legislation enacted at different times and with different problems in view. When this is true, it cannot, without more, ignore the latter."321 U.S. at 321 U. S. 80.In proceedings under § 20a(2), the ICC itself has not acted as though it lacks the power or responsibility to weigh anticompetitive consequences. In Columbia Terminals Co. -- Issuance of Notes, 40 M.C.C. 288, 293, an application to issue notes under § 20a(2) was granted in part only on the condition that the notes be made the subject of competitive bidding. The ICC explicitly rejected the argument that § 10 of the Clayton Act, 15 U.S.C. § 20, requiring competitive bidding in certain situations, was superseded by § 20a. In Stock of New Jersey, I. & I. R. Co., 94 I.C.C. 727, 729, the Commission said, in considering an application to issue stock:"[I]t cannot be said that, in the performance of the broad duty imposed upon us by the statute, we must confine our investigation and consideration to the effect of proposed issues upon the carrier immediately involved. In any application to us for authority to issue securities, we are bound to measure the proposal by the test of public interest in whatever phase that interest may appear to be affected."This "broad duty" was significantly adhered to in Chesapeake & O. R. Co. Purchase, 271 I.C.C. 5. There, the C & O sought modification of an earlier order so as to enable it to acquire and exercise 400,000 shares of New York Central, and two of C & O's directors sought authority under § 20a(12) to hold seats simultaneously on the Central Board. C & O and its directors alleged, in terms strikingly similar to the claims in this case, that Central Page 387 U. S. 495 needed funds and new management, and that the two companies were contemplating plans of mutual advantage and ultimately a merger under § 5(2). The ICC took a broad view of its power and responsibility. It found, as to the § 20a(12) issue, that an insufficient showing had been made that "neither public nor private interests . . ." would be adversely affected by the proposed interlocking directorate, citing its own cases to the effect that authority would be granted under § 20a(12) only where no lessening of competition or independence occurred, 271 I.C.C. at 18, and pointing out that, even if the Central were strengthened, an interlocking directorate might injure other railroads in which the "public has just as great an interest . . . ," 271 I.C.C. at 40. In treating the request that it approve the stock acquisition, the ICC referred in great detail to the facts that (1) the acquisition, when considered along with long-range plans, would result in C & O control of Central; (2) extensive competition between C & O and Central would be eliminated, and (3) cooperation between C & O and Central would pose a substantial threat to another railroad, 271 I.C.C. at 24-29. It refused to authorize the acquisition, concluding that it was in effect being asked"to sanction a violation of the provisions of section 5(4) [requiring carriers to request authority under § 5(2) before acquiring control of another carrier] and also a violation of section 7 of the Clayton Antitrust Act."271 I.C.C. at 39, 43. It stated that, if the applicants were so confident that their long-run aims would be in the public interest, they should seek authority for control under § 5(2). These principles and arguments relied upon by the ICC in rejecting C & O's application are equally applicable here. The economic consequences do not differ because we are concerned here with the issuance of stock, rather than an acquisition on the open market. Page 387 U. S. 496Appellees argue, with some ambivalence, that it would be anomalous to require the ICC to consider anticompetitive issues under § 20a(2). The ICC is authorized under § 5 to grant antitrust immunity for consolidations. No such power exists under § 20a, [Footnote 7] and the Government contends therefore that to require consideration of § 7 issues under § 20a would lead to the"anomalous conclusion that a securities issue may have to be disallowed even though it might be the first step in an acquisition of control that the Commission could, on proper findings, authorize under section 5 notwithstanding antitrust considerations."REA advances a variant of this argument pointing out that the Sixty-sixth Congress, which passed both § 5 and § 20a, would not have"adopted the erratic policy of relaxing enforcement of the antitrust laws when competition was eliminated, but requiring strict enforcement when lesser competitive harm might occur."First, it is by no means true that greater competitive harm necessarily results from consolidations than from stock issuances under § 20a. A particular consolidation may be in the public interest because it increases competition in some respects, while a stock issuance, even though not involving control, may have no similar redeeming feature. Second, any anomaly which may be created by the juxtaposition of §§ 5 and 20a stems not Page 387 U. S. 497 from the fact that no immunity may be granted under § 20a, but from the ICC's special power under § 5. The obligation to enforce the Clayton Act is the rule, and § 5 is the exception. Finally, there are good reasons upon which Congress may have relied in providing that immunity might be conferred under § 5, but not under § 20a. Congress recognized in the Transportation Act of 1940, 54 Stat. 898, as it had in the Act of 1920, that railroad consolidations often result in benefits for the national transportation system as well as for the railroads involved. Consequently, it authorized the ICC to approve consolidations and to immunize them from the antitrust laws when they were found to be in the public interest. The special benefits sometimes realized from carrier consolidations are less likely to come about through the mere issuance of stock, unless the issuance results in control or merger, and, when control or merger does result, the party acquiring control may invoke the Commission's power under § 5 to immunize the consolidation from the antitrust laws.Appellees' reliance upon Alleghany Corp. v. Breswick & Co., 353 U. S. 151, 355 U. S. 355 U.S. 415, is misplaced. That litigation stands, at most, for the proposition that the ICC has discretion in some circumstances to consider § 20a issues without coming to grips with the question whether control of one carrier by another may be unlawful. Alleghany had acquired control of the New York Central without ICC approval. It applied to the ICC, rather than to the Securities and Exchange Commission, for approval of an issue of preferred stock. The ICC took jurisdiction on the ground that, while Alleghany was an investment company normally under the jurisdiction of the SEC, its control of Central made it a carrier subject to ICC regulation. The District Court set aside the order approving the issuance on the ground Page 387 U. S. 498 that ICC jurisdiction to act under § 20a could not rest upon a control it had not approved. This Court reversed, pointing out that it would be contrary to the policy of the statute to oust the ICC of regulatory jurisdiction because a noncarrier had failed to abide by the law. On remand the District Court considered the illegality of Alleghany's control as relevant to the merits of the issuance under § 20a, and we reversed again, stating simply that the only issue left open on remand was whether the stock issue "as approved" was unlawful. 355 U. S. 355 U.S. 415, 355 U. S. 416. However this litigation may be interpreted, it wholly fails to support the proposition that, because § 20a was designed primarily to protect against fiscal manipulation, the ICC is relieved of the necessity of considering other issues germane to the transaction.We conclude, therefore, that the ICC is required, as a general rule, under its duty to determine that the proposed transaction is in the "public interest" and for a "lawful object," to consider the control and anticompetitive consequences before approving stock issuances under § 20a(2). This does not mean the ICC must grant a hearing in every case, or that it may never defer consideration of issues which arise when special circumstances are present. But it does mean that, when the ICC exercises its discretion to approve issuances without first considering important control and competition issues, the reviewing court must closely scrutinize its action in light of the ICC's statutory obligations to protect the public interest and to enforce the antitrust laws. Whether or not an abuse of discretion is present must ultimately depend upon the transaction approved, its possible consequences, and any justifications for the deferral. We turn now to this question, first with respect to the deferral of the control issue and second with respect to the deferral of the anticompetitive issues. Page 387 U. S. 499IIIREA's proposed issuance of a 20% stock interest to Greyhound undoubtedly raised a serious question whether control of its operations might pass to Greyhound. Control under § 5 must be judged realistically, and is a matter of degree. See Rochester Tel. Corp. v. United States, 307 U. S. 125. Even the 20% acquisition standing alone might raise an issue of control necessitating greater consideration than given it by the ICC, but it is clear from REA's own evidence that the purpose of its negotiations with Greyhound was to bring the two companies into a joint alignment. The 20% stock issuance was treated by both as the first step of a more ambitious project, and as evidence of the seriousness of each other's intentions to that end.What the ICC has done must, however, be placed in perspective. It has not denied that a substantial issue of control is present, and it has not refused to consider the issue. It has held only that consideration should be deferred for the 60-day period during which Greyhound has agreed to extend to REA stockholders an offer to purchase up to 1,000,000 shares. We have stressed the unsatisfactory consequences which often occur when agencies defer action and leave parties uncertain as to their rights and obligations. United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499, 294 U. S. 510. We might also observe that the ICC apparently could have avoided the deferral by requiring REA and Greyhound to reform their contract so that all the facts relevant to the control issue could be ascertained before approval was given under § 20a(2). [Footnote 8] Nevertheless, we cannot say that the Page 387 U. S. 500 ICC exceeded its discretion when it deferred consideration of the control issue; radical changes in the relevant facts may take place during the 60-day period, and it is highly unlikely that any harm can flow to appellants or to the public interest from a deferral limited to that issue.Resolution of the "public interest" issue under § 5, requiring consideration of anticompetitive and other consequences, is required when the threshold fact of control or merger is established. But in this case, even assuming that the 20% purchase may amount to "control" under the existing stock distribution, events may occur during the 60-day period which might negate this possibility. Some railroads have indicated their intention to sell their REA holdings, but whether Greyhound or the dissident railroads wind up in a controlling position may depend on the extent to which the latter exercise their right of first refusal. The dissident railroads have made clear their intention to prevent Greyhound from acquiring any additional shares, but even if they obtain one-third of REA's stock, they will be able to determine the composition of REA's Board of Directors. In either case, the added power in the hands of the dissident roads may, depending on the circumstances, lead the ICC to find that Greyhound had not acquired control. [Footnote 9] Thus, the control question can more realistically be resolved with finality after the 60-day period.Moreover, the ICC reasonably concluded that allowing Greyhound tentatively to acquire the 20% stock interest would not prejudice appellants as to the control issue Page 387 U. S. 501 in light of the dissident railroads' position that Greyhound would not acquire "one additional share under the offer to purchase up to one million shares . . . ," and because Greyhound would be unable under REA's bylaws to control the board, since its five directors would be faced by 18 railroad directors, any 13 of whom would have the power to prevent any action proposed by Greyhound.IVThe action of the Commission in deferring consideration of the anticompetitive issues stands on a different footing. The Commission's responsibility under § 5 and under the Clayton Act differs markedly, and the reasons which support an exercise of discretion as to the control issue are wholly inapplicable to the anticompetitive questions. There is, in short, no reasonable justification for deferring the Clayton Act questions.The Commission is, of course, required to consider anticompetitive issues under the public interest standard of § 5, just as it must under the public interest standard of § 20a. But the duty under § 5, as we point out above, arises only after the threshold fact of control is established. No such preliminary finding need be made to trigger the ICC's duty under the Clayton Act. A company need not acquire control of another company in order to violate the Clayton Act. See, e.g., United States v. du Pont & Co., 353 U. S. 586; American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F. Supp. 387 (D.C.S.D.N.Y.1957), aff'd, 259 F.2d 524 (C.A.2d Cir.1958). Section 7 proscribes acquisition of "any part" of a company's stock where the effect "may be substantially to lessen competition, or to tend to create a monopoly." Moreover, the purpose of § 5 is significantly different from that of the Clayton Act. Section 5 is designed to enable carriers to seek and obtain approval of consolidations with other carriers, with immunity from the antitrust Page 387 U. S. 502 laws. When a carrier effects a consolidation without ICC authority, the Commission can, of course, act under § 5(4). But, as the Commission has often held, the carrier must initiate consolidations under § 5, and it is reasonable to expect that carriers will seek the benefits of that provision. In contrast, the Clayton Act is prohibitive, and imposes a positive obligation upon the ICC to act. The Commission is directed, whenever it has reason to believe any carrier within its jurisdiction is violating § 7, to "issue and serve upon such person and the Attorney General a complaint stating its charges in that respect, and containing a notice of a hearing. . . ." 15 U.S.C. § 21(b). Section 16, 15 U.S.C. § 26, excepts from the power of private persons to bring § 7 suits for injunctive relief all cases involving matters subject to ICC jurisdiction. By thus limiting the authority of private persons to institute court proceedings to enjoin § 7 violations, this provision underscores the ICC's responsibility to act when such violations are brought to its attention. One of the principal justifications advanced for the ICC's deferral of the control issue is that the facts relevant to that issue may change so significantly during the 60-day period that the control question could be settled either way. No such possibility exists with respect to at least some of the anticompetitive issues presented by REA's application. We need not accept the argument of appellants, based upon the distinction between "express" and other forms of transport, see, e.g., Railway Express Agency, Inc., Extension -- Nashua, N.H., 91 M.C.C. 311, 322, sustained sub nom. Auclair Transportation, Inc. v. United States, 221 F. Supp. 328 (D. Mass.), aff'd, 376 U. S. 514, that the 205 stock acquisition would itself violate § 7 because REA controls 88% and Greyhound 7% of the "express" market. For if appellees REA and Greyhound are correct that, because of the increasing cross-competition among groups carrying Page 387 U. S. 503 transport, it is impossible to categorize REA as a carrier of "express," then the claims of appellant truck lines, freight forwarders and trucking associations take on added significance. It is precisely the increasing diversification of REA's transport activity, together with Greyhound's considerable capacity and the economics and efficiencies the two companies intend to effectuate jointly, that concerns these appellants.It is clear that REA and Greyhound contemplate major changes in their operation which could have a significant impact upon competition for express and other types of transport which they seek to carry. The "Memorandum of Understanding" into which the companies entered about three weeks before REA agreed to Greyhound's 20% stock acquisition contemplates efficiencies and savings through consolidation of facilities for terminal service, of garages, and of communications, advertising and sales forces. These changes might therefore realize large savings for both REA and Greyhound, and in this way and other ways significantly strengthen their competitive position. And the Memorandum expresses a determination to engage in aggressive action to capture larger shares of express and transport business, especially by utilizing Greyhound's bus operations as a complement to REA's air and rail service. "The consolidation of effort by the two companies," the Memorandum states, "would create a new market with revenue opportunity arising from a complete package express service to the public." The "new ability" of the air express service to reach off-airline points would add significantly to REA and Greyhound revenues, and the new market would have an estimated growth potential of 10% per year. Similarly, rail-bus service was expected to generate millions in "new business," and to"create a new capability for the two carriers to compete in the ltl [less-than-load] market. The only foreseeable limitation to the Page 387 U. S. 504 growth of this service would be the physical space limitations of Greyhound's fleet."There is nothing in the record to rebut the allegations of many of the appellants that cooperation between Greyhound and REA of the sort contemplated by the Memorandum aided by the 20% stock acquisition will result in serious harm to appellants individually and to the public interest which they serve. The freight forwarders fear a great reduction in their business, as do the bus companies. Some of the bus companies, which engage in commuter transport, claim that Greyhound-REA cooperation would deprive them of their express business, and that, since that business makes economically feasible their commuter operations, would compel the termination of services essential to the public interest.It cannot be said with assurance that deferral of consideration of the anticompetitive issues will in no way prejudice appellants or the public interest. The fact that the railroads presently control the REA Board of Directors is hardly relevant to that question. It is not the possibility of control that may prejudice appellants and the public interest, but simply the fact that with Greyhound holding 20% of REA's stock there is likely to be immediate and continuing cooperation between the companies, cooperation which appellants claim will be to their detriment and which the Government concedes may be against the public interest. If appellants are correct, and if such an alliance would, in fact, be against the public interest, then § 7 of the Clayton Act requires that it be stopped in its incipiency. Cf. FTC v. Dean Foods Co., 384 U. S. 597, 384 U. S. 606, n. 5.We are told that REA is in need of funds, and that ICC approval of the 20% stock acquisition assures that REA will obtain capital and gain a measure of independence from the railroads. There is certainly support for the position that REA needs to free "itself from the Page 387 U. S. 505 control and domination previously exercised by its railroad shareholders over its operations." 80 ICC Ann.Rep. p. 22 (1966). The strong ties between REA and the railroads led to the operation of REA in the railroads' own interests, without regard to their coincidence with REA's best interests or the public interest. Prior to a 1959 agreement, generated in large part by REA losses, see Express Contract, 1959, supra, 308 I.C.C. at 546, REA was required to distribute traffic among carriers on the basis of existing traffic patterns, and the consent of rail carriers operating between given points was required before REA could utilize carriers other than railroads between those points. Changes in these limitations have enabled REA to finance some improvements and steadily to increase its corporate surplus. Study of REA Express, Staff Liaison Group V-C, CAB, FMC & ICC 24-26 (1965). But it does not follow that REA will be any better off in the long run, or that the public interest will be advanced, if its ownership shifts in part or entirely to Greyhound.While the history of REA does not, in itself, provide a blueprint for its future, it does "afford a basis for considering the lawfulness of REA's status and activities, and the economic desirability of its apparent direction of growth." Study, op. cit. supra, at 3. That history indicates that there may be some relationship between REA's depressed state and its close ties with railroads. Before acting on this premise, however, the ICC must at least consider the question whether a given course of action will, in fact, alleviate the problem. If railroad ownership operated in the past to deprive REA of an opportunity to prosper and serve the public interest, it is not inconceivable that partial ownership by Greyhound will have the same result. Greyhound, presumably, is no less likely to act in its own interest. If the railroads operated REA, as appellees contend, to minimize competition for Page 387 U. S. 506 transport generally between REA and the railroads, and for express between the railroads themselves and between railroads and other modes of transport, how will partial or complete ownership by Greyhound change things? Even if only partial ownership results, may Greyhound and the railroad owners operate REA so as to minimize competition between REA and themselves for transport generally? What effect, for example, would partial ownership by Greyhound have upon the recent efforts of REA to add to its express operations the hauling of larger and more varied volumes of freight, efforts which bring it into competition with Greyhound and other bus lines, as well as with truck lines and freight forwarders? Moreover, what assurance is there that REA will not tend to route shipments via Greyhound in preference to more efficient or economical carriers or modes, just as the railroads bound REA to use their lines, as opposed to other modes, absent their approval? We assume that REA needs funds, and would be better off more independent from the railroads, but before the ICC can use these reasons to justify a diversification of ownership it must at least consider whether the specific action approved may operate to the detriment of REA or the public interest.There is, finally, little merit to the Government's argument that deferral of the anticompetitive issues is strongly supported by considerations of administrative convenience. The only circumstance in which the anticompetitive issues may be eliminated from the case is if Greyhound, thwarted at the end of the 60 days in its plans to control REA, were to dispose of its 20% interest. But the ICC can hardly justify deferral of consideration of the consequences of a transaction on the possibility that the problems its approval creates may shortly vanish by a reversal of the transaction itself. Of course, if, as appellees claim, it is most likely that Greyhound will Page 387 U. S. 507 acquire no further stock, then consideration of those consequences now would not be wasted effort. And the argument of wasted effort is still less persuasive if appellees are proved wrong and Greyhound does acquire more stock. For the most significant question which the ICC must face is whether it is in the public interest that REA continue to be owned by other transport companies, and specifically by Greyhound. Once this question is resolved as to the 20% stock acquisition, and the consequences of that acquisition are fully weighed, the ICC's task in any subsequent proceeding if Greyhound enlarges its stock interest will be far more manageable.We therefore conclude that, although the possibility that Greyhound may not increase its holdings within the 60-day period may justify deferral of resolution of the control issue, it does not justify delay in consideration of the anticompetitive effects of the 20% transaction. The Government was correct in its position before the ICC that this record placed "before the Commission serious questions under section 7 of the Clayton Act," requiring a hearing.The judgment of the District Court is reversed with direction to enter a new judgment remanding the case to the Interstate Commerce Commission for further proceedings consistent with this opinion.It is so ordered | U.S. Supreme CourtDenver & Rio Grande Western R. Co. v. United States, 387 U.S. 485 (1967)Denver & Rio Grande Western Railroad Co. v. United StatesNo. 305Argued March 16, 1967Decided June 5, 1967387 U.S. 485SyllabusRailway Express Agency (REA) applied to the Interstate Commerce Commission (ICC) for authorization under § 20a of the Interstate Commerce Act to sell 500,000 authorized but unissued shares of its stock to Greyhound Corporation. Greyhound agreed, upon acquisition of these shares, to offer for 60 days to purchase up to 1 million shares of outstanding REA stock, all of which is owned by railroads which have the right of first refusal. REA and Greyhound had entered into a "Memorandum of Understanding" which contemplated efficiencies and savings through consolidation of terminal facilities, garages, communications, advertising, and sales forces. Section 20a(2) of the Act provides for ICC authorization of a carrier's stock issuance if "for some lawful object within [the applicant's] corporate purposes, and compatible with the public interest." Finding the issuance of the 500,000 shares for sale to Greyhound to be urgently needed, the ICC authorized the issuance under § 20a without a hearing, and declined to decide, pending the outcome of Greyhound's 60-day offer, the questions of control under § 5 of the Interstate Commerce Act or anticompetitive effect under § 7 of the Clayton Act. A three-judge District Court sustained the ICC order.Held:1. The ICC is required, as a general rule, under its duty to determine that the proposed transaction is in the "public interest" and for a "lawful object," to consider control and anticompetitive consequences before approving a stock issuance under § 20a(2) of the Interstate Commerce Act. Pp. 492-498.2. The ICC did not exceed its discretion in deferring consideration of the issue of REA's control by Greyhound, as radical changes in the relevant facts might take place in the 60-day period, and it is highly unlikely that any harm could flow to appellants or to the public interest from a deferral limited to that issue. Pp. 387 U. S. 499-501.3. The ICC exceeded its discretion in deferring consideration of the anticompetitive issues. Pp. 387 U. S. 501-507. Page 387 U. S. 486(a) While the ICC's duty to consider anticompetitive issues under the public interest standard of § 5 of the Interstate Commerce Act arises only after a threshold finding of control, no such preliminary finding need be made to trigger the ICC's duty under the Clayton Act. P. 387 U. S. 501.(b) With respect to at least some of the anticompetitive issues presented by REA's application, the relevant facts will not change significantly during the 60-day period. Pp. 387 U. S. 502-503.(c) With Greyhound's holding of 500,000 shares (20%) of REA's stock, there is likely to be immediate and continuing cooperation between the companies, which appellants claim will be to their detriment and which the Government concedes may be against the public interest. If such an alliance would, in fact, be against the public interest, § 7 of the Clayton Act requires that it be stopped in its incipiency. P. 387 U. S. 504.(d) Before the ICC can justify a diversification of ownership on the grounds that REA has an urgent need for funds and would be better off more independent of the railroads, it must consider whether the action approved would operate to the detriment of REA or the public interest. Pp. 387 U. S. 505-506.(e) There is little merit to the Government's contention that deferral of the anticompetitive issues is strongly supported by considerations of administrative convenience. Pp. 387 U. S. 506-507.255 F. Supp. 704, reversed and remanded. Page 387 U. S. 487 |
338 | 1960_161 | MR. JUSTICE FRANKFURTER announced the judgment of the Court, and an opinion in which MR. JUSTICE STEWART joins.Once again the Court is confronted with the painful duty of sitting in judgment on a State's conviction for murder, after a jury's verdict was found flawless by the State's highest court, in order to determine whether the Page 367 U. S. 569 defendant's confessions, decisive for the conviction, were admitted into evidence in accordance with the standards for admissibility demanded by the Due Process Clause of the Fourteenth Amendment. This recurring problem touching the administration of criminal justice by the States presents in an aggravated form in this case the anxious task of reconciling the responsibility of the police for ferreting out crime with the right of the criminal defendant, however guilty, to be tried according to constitutional requirements.On December 15, 1956, the dead bodies of two men were found in Kurp's Gasoline Station in New Britain, Connecticut. Edward J. Kurpiewski, the proprietor, was found in the boiler room with a bullet in his head. Daniel J. Janowski, a customer, was found in the men's toilet room shot twice in the head. Parked at the pumps in front of the station was Janowski's car. In it was Janowski's daughter, physically unharmed. She was the only surviving eyewitness of what had happened at the station. She was eighteen months old.The Kurp's affair was one in a series of holdups and holdup killings that terrified the operators of gasoline stations, package stores and small shops throughout the environing Connecticut area. Newspapers and radio and television broadcasters reported each fresh depredation of the "mad killers." At Hartford, the State Police were at work investigating the crimes, apparently with little evidence to go on. At the scene of the killings of Kurpiewski and Janowski, no physical clues were discovered. [Footnote 1] The bullet slugs removed from the brains of the two victims were split and damaged. Page 367 U. S. 570In the last week of February, 1957, for reasons which do not appear in this record, suspicion in connection with at least two of the holdups under investigation, holdups of a country store in Coventry and of a package store in Rocky Hill, focused on two friends, Arthur Culombe and Joseph Taborsky. On the afternoon of February 23, the two were accosted by teams of officers and asked to come to State Police Headquarters. They were never again out of police custody. In the Headquarters' interrogation room and elsewhere, they were questioned about the Coventry and Rocky Hill holdups, Kurp's, and other matters. Within ten days, Culombe had five times confessed orally to participation in the Kurp's Gasoline Station affair -- once reenacting the holdup for the police -- and had signed three typed statements incriminating himself and Taborsky in the Kurp's killings. Taborsky also confessed.The two were indicted and tried jointly for murder in the first degree before a jury in the Superior Court at Hartford. Certain of their oral and written statements were permitted to go to the jury over their timely objections that these had been extracted from them by police methods which made the confessions inadmissible consistently with the Fourteenth Amendment. Both men were convicted of first-degree murder, and their convictions affirmed by the Supreme Court of Errors. 147 Conn. 194, 158 A.2d 239. Only Culombe sought review by this Court. Because his petition for certiorari presented serious questions concerning the limitations imposed by the Federal Due Process Clause upon the investigative activities of state criminal law enforcement officials, we issued the writ. 363 U.S. 826.IThe occasion which, in December, 1956, confronted the Connecticut State Police with two corpses and an infant as their sole informants to a crime of community-disturbing Page 367 U. S. 571 violence is not a rare one. Despite modern advances in the technology of crime detection, offenses frequently occur about which things cannot be made to speak. And where there cannot be found innocent human witnesses to such offenses, nothing remains -- if police investigation is not to be balked before it has fairly begun -- but to seek out possibly guilty witnesses and ask them questions, witnesses, that is, who are suspected of knowing something about the offense precisely because they are suspected of implication in it.The questions which these suspected witnesses are asked may serve to clear them. They may serve, directly or indirectly, to lead the police to other suspects than the persons questioned. Or they may become the means by which the persons questioned are themselves made to furnish proofs which will eventually send them to prison or death. In any event, whatever its outcome, such questioning is often indispensable to crime detection. Its compelling necessity has been judicially recognized as its sufficient justification, even in a society which, like ours, stands strongly and constitutionally committed to the principle that persons accused of crime cannot be made to convict themselves out of their own mouths.But persons who are suspected of crime will not always be unreluctant to answer questions put by the police. Since, under the procedures of Anglo-American criminal justice, they cannot be constrained by legal process to give answers which incriminate them, the police have resorted to other means to unbend their reluctance, lest criminal investigation founder. [Footnote 2] Kindness, cajolery, entreaty, Page 367 U. S. 572 deception, persistent cross-questioning, even physical brutality have been used to this end. [Footnote 3] In the United States, "interrogation" has become a police technique, [Footnote 4] and detention for purposes of interrogation a common, although Page 367 U. S. 573 generally unlawful, practice. [Footnote 5] Crime detection officials, finding that, if their suspects are kept under tight police control during questioning, they are less likely to be distracted, less likely to be recalcitrant, and, of course, less likely to make off and escape entirely, not infrequently take such suspects into custody for "investigation."This practice has its manifest evils and dangers. Persons subjected to it are torn from the reliances of their daily existence and held at the mercy of those whose job it is -- if such persons have committed crimes, as it is supposed they have -- to prosecute them. They are deprived of freedom without a proper judicial tribunal's having found them guilty, without a proper judicial tribunal's having found even that there is probable cause to believe that they may be guilty. [Footnote 6] What actually happens Page 367 U. S. 574 to them behind the closed door of the interrogation room is difficult, if not impossible, to ascertain. Certainly, if, through excess of zeal or aggressive impatience or flaring up of temper in the face of obstinate silence, a prisoner is abused, [Footnote 7] he is faced with the task of overcoming, by his lone testimony, solemn official denials. [Footnote 8] The prisoner knows this -- knows that no friendly or disinterested witness is present -- and the knowledge may itself induce fear. [Footnote 9] But, in any case, the risk is great that the police Page 367 U. S. 575 will accomplish behind their closed door precisely what the demands of our legal order forbid: make a suspect the unwilling collaborator in establishing his guilt. This they may accomplish not only with ropes and a rubber hose, not only by relay questioning persistently, insistently subjugating a tired mind, but by subtler devices.In the police station, a prisoner is surrounded by known hostile forces. He is disoriented from the world he knows and in which he finds support. [Footnote 10] He is subject to coercing impingements, undermining even if not obvious pressures of every variety. In such an atmosphere, questioning that is long continued -- even if it is only repeated at intervals, never protracted to the point of physical exhaustion -- inevitably suggests that the questioner has a right to, and expects, an answer. [Footnote 11] This is so, certainly, when the prisoner has never been told that he need not answer and when, because his commitment to custody seems to be at the will of his questioners, he has every Page 367 U. S. 576 reason to believe that he will be held and interrogated until he speaks. [Footnote 12]However, a confession made by a person in custody is not always the result of an overborne will. The police may be midwife to a declaration naturally born of remorse, or relief, or desperation, or calculation. If that is so, if the "suction process" [Footnote 13] has not been at the prisoner and drained his capacity for freedom of choice, does not the awful responsibility of the police for maintaining the peaceful order of society justify the means which they have employed? It will not do to forget, as Sir Patrick (now Lord Justice) Devlin has put it, that"The least criticism of police methods of interrogation deserves to be most carefully weighed, because the evidence which such interrogation produces is often decisive; the high degree of proof which the English law requires -- proof beyond reasonable doubt -- often could not be achieved by the prosecution without the assistance of the accused's own statement. [Footnote 14]"Yet even if one cannot adopt "an undiscriminating hostility to mere interrogation . . . without unduly fettering the States in protecting society from the criminal," [Footnote 15] there remain the questions: when, Page 367 U. S. 577 applied to what practices, is a judgment of impermissibility drawn from the fundamental conceptions of Anglo-American accusatorial process "undiscriminating"? What are the characteristics of the "mere interrogation" which is allowable consistently with those conceptions?IIThe problem which must be faced in fair recognition of the States' basic security and of the States' observance of their own standards, apart from the sanctions of the Fourteenth Amendment, in bringing the guilty to justice is that which Mr. Justice Jackson described in dealing with three cases before us:"In each case, police were confronted with one or more brutal murders which the authorities were under the highest duty to solve. Each of these murders was unwitnessed, and the only positive knowledge on which a solution could be based was possessed by the killer. In each, there was reasonable ground to suspect an individual, but not enough legal evidence to charge him with guilt. In each, the police attempted to meet the situation by taking the suspect into custody and interrogating him. . . ."". . . [N]o one suggests that any course held promise of solution of these murders other than to take the suspect into custody for questioning. The alternative was to close the books on the crime and forget it, with the suspect at large. This is a grave choice for a society in which two-thirds of the murders already are closed out as insoluble.""* * * *" ". . . The suspect neither had nor was advised of his right to get counsel. This presents a real dilemma in a free society. To subject one without counsel to questioning which may and is intended to Page 367 U. S. 578 convict him, is a real peril to individual freedom. To bring in a lawyer means a real peril to solution of the crime, because, under our adversary system, he deems that his sole duty is to protect his client -- guilty or innocent -- and that, in such a capacity, he owes no duty whatever to help society solve its crime problem. Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."Watts v. Indiana, 338 U. S. 49, 338 U. S. 57, 338 U. S. 58-59.The nature and components of this problem, concerning as it does liberty and security, had better be overtly and critically examined than smothered by unanalyzed assumptions. That judges who agree on relatively legal considerations may disagree in their application to the same set of circumstances does not weaken the validity of those considerations, nor minimize their importance. Differences in the appraisal of the same facts is a commonplace of adjudication.The critical elements of the problem may be quickly isolated in light of what has already been said. Its first pole is the recognition that "Questioning suspects is indispensable in law enforcement." [Footnote 16] As the Supreme Court of New Jersey put it recently:"the public interest requires that interrogation, and that at a police station, not completely be forbidden, so long as it is conducted fairly, reasonably, within proper limits and with full regard to Page 367 U. S. 579 the rights of those being questioned. [Footnote 17]"But if it is once admitted that questioning of suspects is permissible, whatever reasonable means are needed to make the questioning effective must also be conceded to the police. Page 367 U. S. 580 Often prolongation of the interrogation period will be essential, so that a suspect's story can be checked and, if it proves untrue, he can be confronted with the lie; if true, released without charge. [Footnote 18] Often, the place of questioning will have to be a police interrogation room, both because it is important to assure the proper atmosphere of privacy and nondistraction if questioning is to be made productive [Footnote 19] and because, where a suspect is questioned but not taken into custody, he -- and in some cases his associates -- may take prompt warning and flee the premises. Legal counsel for the suspect will generally prove a thorough obstruction to the investigation. [Footnote 20] Indeed, even to inform the suspect of his legal right to keep silent will prove an obstruction. Whatever fortifies the suspect or seconds him in his capacity to keep his mouth closed is a potential obstacle to the solution of crime. Page 367 U. S. 581At the other pole is a cluster of convictions each expressive, in a different manifestation, of the basic notion that the terrible engine of the criminal law is not to be used to overreach individuals who stand helpless against it. [Footnote 21] Among these are the notions that men are not to be imprisoned at the unfettered will of their prosecutors, nor subjected to physical brutality by officials charged with the investigation of crime. Cardinal among them, also, is the conviction, basic to our legal order, that men are not to be exploited for the information necessary to condemn them before the law, that, in Hawkins' words, a prisoner is not "to be made the deluded instrument of his own conviction." 2 Hawkins, Pleas of the Crown (8th ed. 1824), 595. This principle, branded into the consciousness of our civilization by the memory of the secret inquisitions, sometimes practiced with torture, which were borrowed briefly from the continent during the era of the Star Chamber, [Footnote 22] was well known to those who established the American governments. [Footnote 23] Its essence is the requirement Page 367 U. S. 582 that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips. See Blackburn v. Alabama, 361 U. S. 199, 361 U. S. 206-207; Chambers v. Florida, 309 U. S. 227, 309 U. S. 235-238. Quite early, the English courts acknowledged the barrier that, in this regard, set off the accusatorial system from the inquisitorial. [Footnote 24] And soon Page 367 U. S. 583 they came to enforce it by the rigorous demand that an extrajudicial confession, if it was to be offered in evidence against a man, must be the product of his own free choice. [Footnote 25] So fundamental, historically, is this concept, that the Page 367 U. S. 584 Fourteenth Amendment, as enforced by our decisions, applied it as a limitation upon the criminal procedure of the States. Consistently with that Amendment, neither the body nor mind of an accused may be twisted until he breaks. Brown v. Mississippi, 297 U. S. 278; Leyra v. Denno, 347 U. S. 556.Recognizing the need to protect criminal suspects from all of the dangers which are to be feared when the process of police interrogation is entirely unleashed, legislatures have enacted several kinds of laws designed to curb the worst excesses of the investigative activity of the police. The most widespread of these are the ubiquitous statutes requiring the prompt taking of persons arrested before a judicial officer; [Footnote 26] these are responsive both to the fear Page 367 U. S. 585 of administrative detention without probable cause and to the known risk of opportunity for third-degree practices which is allowed by delayed judicial examination. [Footnote 27] Other statutes outlaw the sweating, beating or imprisonment Page 367 U. S. 586 of suspects for the purpose of extorting confessions, [Footnote 28] or assure imprisoned suspects the right to communicate with friends or legal counsel. [Footnote 29] But because it is the courts which are charged, in the ultimate, both with the Page 367 U. S. 587 enforcement of the criminal law and with safeguarding the criminal defendant's rights to procedures consistent with fundamental fairness, the problem of reconciling society's need for police interrogation with society's need for protection from the possible abuses of police interrogation decisively devolves upon the courts, particularly in connection with the rules of evidence which regulate the admissibility of extrajudicial confessions. Under our federal system, this task, with respect to local crimes, is, of course, primarily the responsibility of the state courts. The Fourteenth Amendment, however, limits their freedom in this regard. It subjects their broad powers to a limited, but searching, federal review, and places upon this Court the obligation -- with all the deference and caution which exercise of such a competence demands -- to adjudicate what due process of law requires by way of restricting the state courts in their use of the products of police interrogation.That judgment is what is at issue in this case.IIIThe dilemma posed by police interrogation of suspects in custody and the judicial use of interrogated confessions to convict their makers cannot be resolved simply by wholly subordinating one set of opposing considerations to the other. The argument that, without such interrogation, it is often impossible to close the hiatus between suspicion and proof, especially in cases involving professional criminals, is often pressed in quarters responsible and not unfeeling. It is the same argument that Page 367 U. S. 588 was once invoked to support the lash and the rack. [Footnote 30] Where it has been put to this Court in its extreme form, as justifying the all-night grilling of prisoners under circumstances of sustained, week-long terror, we have rejected it. Chambers v. Florida, 309 U. S. 227, 309 U. S. 240-241. "The Constitution proscribes such lawless means irrespective of the end."But asking questions is not the lash or the rack, and to say that the argument ex necessitate is not the short answer to every situation in which it is invoked is not to dismiss it altogether. Due process does not demand of the States, in their administration of the criminal law, standards of favor to the accused which our civilization, in its most sensitive expression, has never found it practical to adopt. The principle of the Indian Evidence Act which excludes all confessions made to the police or by persons while they are detained by the police [Footnote 31] has never been accepted in England [Footnote 32] or in Page 367 U. S. 589 this country. [Footnote 33] Nor has the principle of the Scottish cases barring the use in evidence of a defendant's incriminating responses to police questioning at any time after suspicion has focused on him. [Footnote 34] Rather, this Court (in cases coming here from the lower federal courts), [Footnote 35] the courts of England [Footnote 36] and of Canada, [Footnote 37] and Page 367 U. S. 590 the courts of all the States [Footnote 38] have agreed in holding permissible the receipt of confessions secured by the questioning of suspects in custody by crime-detection officials. And, in a long series of cases, this Court has held that the Page 367 U. S. 591 Fourteenth Amendment does not prohibit a State from such detention and examination of a suspect as, under all the circumstances, is found not to be coercive. See Lisenba v. California, 314 U. S. 219; Lyons v. Oklahoma, Page 367 U. S. 592 322 U. S. 596; Gallegos v. Nebraska, 342 U. S. 55; Brown v. Allen, 344 U. S. 443; Stein v. New York, 346 U. S. 156, 346 U. S. 184; Crooker v. California, 357 U. S. 433; Cicenia v. La Gay, 357 U. S. 504. And see Townsend v. Burke, 334 U. S. 736, 334 U. S. 738. Page 367 U. S. 593It is true that the English courts have long tended severely to discourage law enforcement officers from asking questions of persons under arrest or who are so far suspected that their arrest is imminent. The judges have Page 367 U. S. 594 many times deprecated the practice even while receiving in evidence the confessions it has produced. [Footnote 39] The manual known as the Judges' Rules, first issued in 1912, augmented in 1918, and clarified by a Home Office Circular Page 367 U. S. 595 published in 1930, embodies the attitude of the English Bench in this regard. [Footnote 40] While encouraging police officers to put questions to all possibly informed persons, whether or not suspected, during the early phase of their investigation Page 367 U. S. 596 which aims at discovering who committed the offense, the Rules admonish that, so soon as the officers make up their minds to charge a particular person with a crime, they should caution him, first, that he need say nothing and, second, that what he says may be used in evidence, before questioning him or questioning him further. Persons in custody are not to be questioned, except that, when a prisoner, having been cautioned, volunteers a statement, such questions may be asked as are fairly needed to remove ambiguities, so long as the questioner does not seek to elicit information beyond the scope of what the prisoner has offered. If two or more persons are charged with an offense and the police have taken the statement of one of them, copies may be furnished to the others, but nothing should be said or done to invite a reply. [Footnote 41] The Judges' Rules are not "law" in the sense Page 367 U. S. 597 that any violation of them by a questioning officer eo ipso renders inadmissible in evidence whatever incriminatory responses he may obtain. [Footnote 42] But it is clear that the judges presiding at criminal trials have broad discretion to exclude any confession procured by methods which offend against the letter or the spirit of the Rules, [Footnote 43] and violations have in a few instances seemed to influence, although not to control, the judgment of the Court of Criminal Appeal in quashing convictions. [Footnote 44] For these reasons, Page 367 U. S. 598 and because of the respect which attaches to the Rules in view of their source, they have doubtless had a pervasive effect upon actual police practices, and they appear to be regarded by the constabulary as a more or less infrangible code. [Footnote 45] Inasmuch as the same conception is shared by counsel for the Crown, the contemporary English reports do not disclose cases involving the sort of claims of coercion so frequently litigated in our courts. It may well be that their circumstances seldom arise; [Footnote 46] when they do, the Crown does not offer the confession; if it were offered -- in a case, for example, where several hours of questioning could be shown -- the trial judge would almost certainly exclude it. [Footnote 47]This principle by which the English trial judges have supplemented the traditional Anglo-American rule that Page 367 U. S. 599 confessions are admissible if voluntary, by the exercise of a discretion to exclude incriminating statements procured by methods deemed oppressive, although not deemed fundamentally inconsistent with accusatorial criminal procedure, [Footnote 48] has not been imitated in the United States. [Footnote 49] In 1943, this Court, in McNabb v. United States, 318 U. S. 332, drew upon its supervisory authority over the administration of federal criminal justice to inaugurate an exclusionary practice considerably less stringent than the English. That practice requires the exclusion of any confession"made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the 'confession is the result of torture, physical or psychological. . . .'"Upshaw v. United States, 335 U. S. 410, 335 U. S. 413. [Footnote 50] Its purpose is to give effect to the requirement that persons arrested be brought without unnecessary delay before a judicial officer -- a safeguard which our society, like other civilized Page 367 U. S. 600 societies, has found essential to the protection of personal liberty. [Footnote 51]The McNabb case was an innovation which derived from our concern and responsibility for fair modes of criminal proceeding in the federal courts. [Footnote 52] The States, in the large, have not adopted a similar exclusionary principle. [Footnote 53] And although we adhere unreservedly to McNabb Page 367 U. S. 601 for federal criminal cases, we have not extended its rule to state prosecutions as a requirement of the Fourteenth Amendment. Gallegos v. Nebraska, 342 U. S. 55, 342 U. S. 63-64 (opinion of Reed, J.); Brown v. Allen, 344 U. S. 443, 344 U. S. 476; Stein v. New York, 346 U. S. 156, 346 U. S. 187-188; cf. Lyons v. Oklahoma, 322 U. S. 596, 322 U. S. 597-598, note 2; Townsend v. Burke, 334 U. S. 736, 334 U. S. 738; Stroble v. California, 343 U. S. 181, 343 U. S. 197.In light of our past opinions and in light of the wide divergence of views which men may reasonably maintain concerning the propriety of various police investigative procedures not involving the employment of obvious brutality, this much seems certain: it is impossible for this Court, in enforcing the Fourteenth Amendment, to attempt precisely to delimit, or to surround with specific, all-inclusive restrictions, the power of interrogation allowed to state law enforcement officers in obtaining confessions. No single litmus paper test for constitutionally impermissible interrogation has been evolved: neither extensive cross-questioning -- deprecated by the English judges; nor undue delay in arraignment -- proscribed by McNabb; nor failure to caution a prisoner -- enjoined by the Judges' Rules; nor refusal to permit communication with friends and legal counsel at stages in the proceeding when the prisoner is still only a suspect -- prohibited by several state statutes. See Lisenba v. California, Page 367 U. S. 602 314 U. S. 219; Crooker v. California, 357 U. S. 433; Ashdown v. Utah, 357 U. S. 426.Each of these factors, in company with all of the surrounding circumstances -- the duration and conditions of detention (if the confessor has been detained), the manifest attitude of the police toward him, his physical and mental state, the diverse pressures which sap or sustain his powers of resistance and self-control -- is relevant. [Footnote 54] The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U. S. 534. The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession. Page 367 U. S. 603IVThe inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external, "phenomenological" occurrences and events surrounding the confession. Second, because the concept of "voluntariness" is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, "psychological" fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which also comprehend both induction from, and anticipation of, factual circumstances.In a case coming here from the highest court of a State in which review may be had, the first of these phases is definitely determined, normally, by that court. Determination of what happened requires assessments of the relative credibility of witnesses whose stories, in cases involving claims of coercion, are frequently, if indeed not almost invariably, contradictory. That ascertainment belongs to the trier of facts before whom those witnesses actually appear, subject to whatever corrective powers a State's appellate processes afford.This means that all testimonial conflict is settled by the judgment of the state courts. Where they have made explicit findings of fact, those findings conclude us and form the basis of our review -- with the one caveat, necessarily, that we are not to be bound by findings wholly lacking support in evidence. See Thompson v. Louisville, 362 U. S. 199. Where there are no explicit findings, or in the case of lacunae among the findings, the rejection of a federal constitutional claim by state criminal courts applying Page 367 U. S. 604 proper constitutional standards [Footnote 55] resolves all conflicts in testimony bearing on that claim against the criminal defendant. In such instances, we consider only the uncontested portions of the record: the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Ashcraft v. Tennessee, 322 U. S. 143, 322 U. S. 152-153; Lyons v. Oklahoma, 322 U. S. 596, 322 U. S. 602-603; Watts v. Indiana, 338 U. S. 49, 338 U. S. 50-52 (opinion of Frankfurter, J.); Gallegos v. Nebraska, 342 U. S. 55, 342 U. S. 60-62; Stein v. New York, 346 U. S. 156, 346 U. S. 180-182; Payne v. Arkansas, 356 U. S. 560, 356 U. S. 561-562; Thomas v. Arizona, 356 U. S. 390, 356 U. S. 402-403.The second and third phases of the inquiry -- determination of how the accused reacted to the external facts, and of the legal significance of how he reacted -- although distinct as a matter of abstract analysis, become in practical operation inextricably interwoven. This is so, in part, because the concepts by which language expresses an otherwise unrepresentable mental reality are themselves generalizations importing preconceptions about the reality to be expressed. It is so, also, because the apprehension of mental states is almost invariably a matter of induction, more or less imprecise, and the margin of error which is thus introduced into the finding of "fact" must be accounted for in the formulation and application of the "rule" designed to cope with such classes of facts. The Page 367 U. S. 605 notion of "voluntariness" is itself an amphibian. It purports at once to describe an internal psychic state and to characterize that state for legal purposes. Since the characterization is the very issue "to review which this Court sits," Watts v. Indiana, 338 U. S. 49, 338 U. S. 51 (opinion of Frankfurter, J.), the matter of description, too, is necessarily open here. See Lisenba v. California, 314 U. S. 219, 314 U. S. 237-238; Ward v. Texas, 316 U. S. 547, 316 U. S. 550; Haley v. Ohio, 332 U. S. 596, 332 U. S. 599; Malinski v. New York, 324 U. S. 401, 324 U. S. 404, 324 U. S. 417.No more restricted scope of review would suffice adequately to protect federal constitutional rights. For the mental state of involuntariness upon which the due process question turns can never be affirmatively established other than circumstantially -- that is, by inference; and it cannot be competent to the trier of fact to preclude our review simply by declining to draw inferences which the historical facts compel. Great weight, of course, is to be accorded to the inferences which are drawn by the state courts. In a dubious case, it is appropriate, with due regard to federal-state relations, that the state court's determination should control. But where, on the uncontested external happenings, coercive forces set in motion by state law enforcement officials are unmistakably in action; where these forces, under all the prevailing states of stress, are powerful enough to draw forth a confession; where, in fact, the confession does come forth and is claimed by the defendant to have been extorted from him; and where he has acted as a man would act who is subjected to such an extracting process -- where this is all that appears in the record -- a State's judgment that the confession was voluntary cannot stand.". . . [I]f force has been applied, this Court does not leave to local determination whether or not the confession was voluntary. There is torture of mind as well as body; the will is as much affected by fear Page 367 U. S. 606 as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men."Watts v. Indiana, supra, at 338 U. S. 52.VWe turn, then, to the uncontested historical facts as they appear in this record. Since judgment as to legal voluntariness vel non under the Due Process Clause is drawn from the totality of the relevant circumstances of a particular situation, a detailed account of them is unavoidable. When Culombe's confessions were offered by the prosecution and objected to as constitutionally inadmissible, the Connecticut Superior Court, pursuant to the applicable Connecticut procedure, [Footnote 56] excused the jury and took evidence bearing on the issue of coercion. It later made explicit findings setting forth the facts which it credited and deemed relevant. On the basis of these findings and -- insofar as they do not cover all aspects of the testimony -- of evidence that is uncontradicted, the following may be taken as established. [Footnote 57] Page 367 U. S. 607In February, 1957, the Connecticut State Police at Hartford were investigating a number of criminal incidents. In connection with certain of these (other than the Kurp's Gasoline Station killings in New Britain), it was decided on Saturday, February 23, to have two men, Arthur Culombe and Joseph Taborsky, picked up and viewed by witnesses. Lieutenant Rome, who was in charge of the investigation, delegated teams of officers to go to different addresses where the men might be located.Shortly after 2 p.m., two officers accosted Culombe and Taborsky entering a car in front of the home of the latter's mother in Hartford. They told Taborsky that Lieutenant Rome wanted to talk to him at State Police Headquarters. They said that this was not an arrest. Taborsky stated that he was willing to go, and Culombe drove him to Headquarters, following the officer's car. Leaving Taborsky, Culombe immediately drove home.Shortly after his arrival at about 2:30 p.m., Sergeant Paige and another officer came to Culombe's apartment to bring him back to Headquarters. They told Culombe that he was not arrested, that Lieutenant Rome wanted to talk to him. Culombe drove Sergeant Paige to Headquarters in his, Culombe's, car. From this time, Culombe was never again out of the effective control of the police.Lieutenant Rome spoke briefly to Culombe and Taborsky and asked them if they would agree to accompany several officers to Coventry and Rocky Hill for purposes of possible identification. They consented. Sergeant Paige and two other officers took Culombe and Taborsky on this trip, which consumed about three hours, between 3 and 6 p.m. In the car, Culombe was questioned concerning his possible participation in several crimes. He was not then regarded as under arrest. During the stops at Coventry and Rocky Hill, after Culombe and Taborsky, at the officers' request, had entered a country store and a package store feigning to be customers, the Page 367 U. S. 608 two men were left for brief periods of time in the police cruiser with only Officer Griffin present. Griffin permitted them to drink the contents of a bottle of liquor which Taborsky carried.On the return to Hartford, the group stopped at a diner for dinner. Culombe and Taborsky were told to order what they wanted, and ate well. At Headquarters, Culombe was questioned for an hour by Paige concerning his possession of guns. He told Paige that he was a gun collector, and had seven or eight guns at his home which he agreed to turn over to the police. The reason Culombe revealed this information to Paige was that the guns were registered, and Culombe knew that Paige could have traced them to him in any event.Paige and another officer took Culombe to his home, where Culombe left them in the living room and went to the bedroom. Following, they found him with two guns. They found a clip of cartridges in a drawer which he had just closed and six more guns in a small safe. They took these. Culombe and the second officer left and waited together on the street near the cruiser, the officer holding Culombe's arm, for approximately twenty minutes while Paige remained in Culombe's apartment questioning Culombe's wife.Culombe was taken back to Headquarters. Paige talked with him for a short while, then discontinued his investigation for the night. Rome talked with Culombe for about two hours, apparently over a three- or three-and-a-half-hour period. The talk concerned the Kurp's killings and other matters. At this time, Culombe and Taborsky were kept in separate rooms. Rome would question one, then the other, staying with each man until he got some bit of information that he could have checked. During respites of questioning by Rome, Culombe remained in the interrogation room. Page 367 U. S. 609At one point, Culombe told Rome that he wanted to see a lawyer, but did not give the name of any specific lawyer. Rome replied that Culombe could have any lawyer he wanted if Culombe would tell Rome what lawyer to call. Rome knew that Culombe, an illiterate, was unable to use the telephone directory.About 10 p.m., Rome put Culombe under arrest by virtue of a Connecticut statute permitting arrest without a warrant where the arresting officer has cause to suspect that the person arrested has committed a felony. The statute requires that persons so arrested be presented with reasonable promptness before the proper authority. [Footnote 58] Culombe was taken to a cell at Headquarters sometime before midnight. However, the log book in which notation is customarily made of prisoners detained in the Headquarters cell blocks shows no entry for Culombe Saturday night.Concerning the purpose of the questioning which began on Saturday and continued intermittently until Culombe confessed the following Wednesday, Sergeant Paige candidly admitted that it was intended to obtain a confession if a confession was obtainable. [Footnote 59] Lieutenant Rome agreed that he had kept after Culombe until he got answers which he could prove were correct. [Footnote 60] There is Page 367 U. S. 610 no indication that at any time Culombe was warned of his right to keep silent. Neither Paige nor anyone in Paige's hearing cautioned Culombe concerning his constitutional rights. [Footnote 61]On Sunday, February 24, Culombe was questioned for a short time about the New Britain killings, and denied that he was involved. He was also questioned by Paige and a Hartford detective about another robbery. The following morning, Culombe and Taborsky were driven to New Britain and, after a substantial wait at the Detective Headquarters building, were booked for breach of the peace at New Britain Police Headquarters. Crowds lined both sides of the street where the stations were located. After the booking, en route back to Hartford, the cruiser in which Culombe rode stopped at Kurp's gas station. Rome asked Culombe if he recognized the place; Culombe said that he did not. On Monday afternoon, Culombe was again questioned at Headquarters concerning Kurp's as well as other matters. Lieutenant Rome questioned him for two or three hours. Sergeant Paige also questioned him for twenty minutes or half an hour, but this appears to have been concurrent with Rome's questioning. Culombe then confessed to the Page 367 U. S. 611 theft of certain canned goods and made a statement about them that was reduced to writing.On Tuesday, February 26, Culombe was removed from his cell to be taken to the New Britain Police Court for presentation on the breach of the peace charge. At that time, Rome told him that he was to be brought to court and would have an opportunity to see a lawyer. At New Britain, there were again crowds on the street, but not as heavy as Monday's.The courtroom was crowded. Once in it, Culombe and Taborsky were placed in a prisoners' pen, a wire-mesh, cage-like affair in the corner of the room. Photographers with flashbulbs took photographs of them in the pen. The crowd was between the pen and the judge's bench. When court convened, the two men were presented for breach of the peace. Culombe was not required to plead. He was not heard by the court. He was not taken out of the pen and brought before the bench. He was not told that he might have counsel. No one informed the judge that Culombe had previously asked to see a lawyer. At Lieutenant Rome's suggestion, the prosecuting attorney moved for a continuance. Without Giving Culombe an occasion to contest the motion or participate in any way in the proceedings, the court continued the case for a week and issued a mittimus committing Culombe to the Hartford County Jail until released by due course of law.The idea of presenting Culombe and Taborsky on charges of breach of the peace was Rome's, in collaboration with the alternate prosecutor. [Footnote 62] Its purpose, Rome Page 367 U. S. 612 testified, was "To help me investigate some serious crimes in the state of Connecticut." This breach of the peace prosecution was later nolled, Culombe having never been brought back before the Police Court because "[i]t wasn't necessary." [Footnote 63] In testimony admitted in Taborsky's case, Rome conceded that he could have booked Taborsky (and hence, presumably, Culombe, since the legal proceedings against the two men were at all stages prosecuted simultaneously) on Sunday and presented him on Monday, but delayed because he, Rome, wanted more time, more interrogation. Presenting the man on Monday, although it would have been in accordance with the Connecticut statute requiring presentation with reasonable promptness, was not, Rome testified, "in accordance with good investigation." [Footnote 64]On leaving the Police Court, and after another stop at Kurp's, Culombe was returned to Headquarters in Hartford, where he and Taborsky were questioned by Rome and other officers during an indeterminate period that cannot have been more than about two hours. At 3 or 4 that afternoon, Rome visited the Culombe home and questioned Culombe's wife for half an hour. Rome Page 367 U. S. 613 then returned to Headquarters where, shortly thereafter, Mrs. Culombe arrived, brought in a police cruiser by a policewoman pursuant to arrangements made by Rome, but by her own request or at the least, her own agreement. Her children were with her. She spoke briefly with Rome, who asked her if she "would go along and lay the cards on the table to her husband and see if he wouldn't confess." [Footnote 65] Mrs. Culombe was then taken to a room where, in the presence of Rome and the policewoman, she talked to Culombe during a quarter of an hour. The children were not in the room. Mrs. Culombe asked Culombe if he were responsible for the New Britain killings, and told him that if he were, he should tell the police the truth. Rome permitted this confrontation because "it is another way of getting a confession." He admitted that he asked Mrs. Culombe to help the police, and that she did help them indirectly; that he tried to use her as a means of securing her husband's confession.After Mrs. Culombe left the room, Rome continued to question Culombe concerning certain conversations between Culombe and Taborsky. Culombe and Rome went to the door of the room and Rome called Culombe's thirteen-year-old daughter into the room, saying: "Honey, come in here and. . . . You tell me how they went into the bedroom and talked -- Joe Taborsky and your father." There is no indication that the girl did come into the room or that she said anything.Culombe was returned to his cell. Paige came to the cell and began to ask him questions, but Culombe was upset by the scene with his family and choked up or sobbed and told Paige that he did not want to talk. Paige discontinued the questioning and sat with Culombe for fifteen or twenty minutes until other officers came to remove Culombe to the County Jail pursuant to the mittimus Page 367 U. S. 614 of the New Britain Police Court. Paige admitted that Culombe's confrontation by his wife had been an "ordeal," and Rome agreed that the prisoner was "upset." Culombe was logged in at the jail between 8 and 9 that night.At about 10 a.m. on Wednesday, February 27, jail guards came to Culombe's cell, led him to the gates of the jail, and turned him into the custody of Sergeant Paige and several other State Police officers. Notation was made on the books of the jail that the State Police had "borrowed" Culombe. [Footnote 66] Held at Headquarters until 1 p.m., Culombe was then brought to the interrogation room for questioning by Paige and Detective Murphy. Paige, who was at first alone in the room with Culombe, began by telling Culombe that Culombe had been lying to him. He suggested that, whenever Culombe did not want to answer a question, Culombe say "I don't want to answer" instead of lying. Culombe agreed, and thereupon Paige, who held a list of the crimes being investigated, went through it questioning Culombe about his participation in each. Answering each question, Culombe stated either that he had not been there or that he did not want to talk about it. When Paige had gotten through the list, Murphy, having come in, took the list over and repeated the same questions that Culombe had answered or refused to answer for Paige. Paige left the room for a while, then reentered. Murphy asked Culombe whether Culombe did not want to cooperate. Culombe said that he did, but that it was a hard decision to make. Murphy asked whether Culombe was in fear of anyone, and Culombe answered that he was in fear of Taborsky. After approximately an hour and a half, Culombe told the police that they were looking for four Page 367 U. S. 615 guns and two men, and that he had not done any killing himself. Immediately, Rome, who had been listening to the interrogation over an intercommunication system, came into the room and, shortly thereafter, Detective O'Brien also arrived. Culombe agreed to show the officers where the guns would be found. [Footnote 67] He requested that they travel in an unmarked car, and was assured that the cruiser would carry no identifying insignia. At about 3:30 p.m., the four officers and Culombe left Headquarters for Culombe's home.During the short ride, Rome questioned Culombe in the rear seat of the car. The other three officers sat up front. When Culombe began to give answers which Rome regarded as significant, Rome told O'Brien, who had been driving, to let Murphy take the wheel. O'Brien, who was skilled at shorthand, understood that this meant that he was to take the conversation down. He did so. In it, Culombe admitted participation in a number of crimes, including the gas station holdup. He gave a detailed description of what happened at Kurp's in which he related that he and Taborsky had robbed the station and that Taborsky had shot both the proprietor and the customer. Several officers testified to the content of this oral confession at the trial.Culombe, the four officers and two police photographers entered the Culombes' project apartment. There they found Mrs. Culombe with her younger, five-year-old daughter. After directing Rome to a cache behind the medicine cabinet where certain weapons were concealed and to a safe compartment containing parts of a gun, Page 367 U. S. 616 Culombe spoke with his wife in the living room in the presence of at least one detective. He told her that he had decided to cleanse his conscience and make a clean breast of things; that he was afraid that Taborsky might harm her, and so he was cooperating. He also said that he wanted to save Mrs. Culombe embarrassment as far as the neighbors were concerned. [Footnote 68] Leaving the apartment in the cruiser, Culombe directed the officers to a nearby swampy area where he pointed out the location in which he had disposed of one gun and part of another used at Kurp's. He led them to another swamp where a raincoat said to have been worn on the night of the holdup was recovered. After several other like stops, he was taken back to Headquarters, arriving just after 6 p.m. There, in response to brief questioning in the presence of Major Remer and Commissioner Kelly, he repeated his confessions of the early afternoon.Culombe was taken to dinner. Shortly afterwards, he again saw Mrs. Culombe, who had come to Headquarters with her five-year-old. The child was sick. Mrs. Culombe told Culombe that the child was sick, and Culombe said that he thought that the policewoman would take it to the hospital if she were asked. At about 8 p.m., Rome, Paige O'Brien and County Detective Matus brought Culombe to the interrogation room to reduce his several confessions to writing. Culombe made a number of statements. The manner of taking them (no doubt complicated by Culombe's illiteracy and his tendency to give rambling and nonconsecutive answers) was as follows: Rome questioned Culombe; Culombe Page 367 U. S. 617 answered; Rome transposed the answer into narrative form; Culombe agreed to it; Rome dictated the phrase or sentence to O'Brien. Each completed statement was read to and signed by Culombe. The last of them related to the Kurp's holdup and to another crime committed earlier on the same day. It was started shortly before 11 p.m., and the Kurp's episode was reached at 12:30 a.m. The Kurp's statement required a half hour to compose.At the end of this four-and-a-half-hour interview, Culombe was unshaved, his clothing a sorry sight. He was tired. He spent that night in a cell at State Police Headquarters at his own request, apparently because he was afraid of Taborsky, who was still lodged in the Hartford Jail. Although the confession which he signed that night was not put in as an exhibit at the trial, it was fully laid before the jury by the receipt in evidence of another typed paper substituted for it by stipulation and whose contents, several officers testified, embodied the substance of what Culombe told them shortly after midnight Wednesday. [Footnote 69] Page 367 U. S. 618On Thursday, February 28, Rome had Culombe brought into a room where he was talking to Taborsky. At the Lieutenant's direction, Culombe repeated his confession. Later Culombe was presented in the Superior Court on a charge of first-degree murder pursuant to a bench warrant issued that morning. The presiding judge warned Culombe of his rights to keep silent and to have counsel. He asked Culombe if he wanted counsel, and Culombe replied that he did. Culombe said that he did not want the public defender, that he wanted attorney McDonough, but could not afford to pay for his services. The judge promised that the court would see that Culombe had the attorney of his choice at state expense. He then informed Culombe that the police wished to conduct an investigation into the charges against him, and had requested an order releasing Culombe into their custody for that purpose. Asked if he was willing to cooperate, Culombe said that he was. He was told that this might mean that he would be taken to the sites of various crimes, and again said that he was willing to cooperate; he wanted "to cooperate with them in any way I can." Accordingly, the court released Culombe to the State Police Commissioner for the purpose of continuing the investigation.At Kurp's gasoline station, Culombe reenacted the holdup for Rome and other officers. Later that afternoon at Headquarters, New York detectives talked to him concerning a New York killing. No further investigation relating to the Connecticut crimes was conducted that day or Friday. Culombe remained in the cell block at Headquarters, rather than at the County Jail, at his Page 367 U. S. 619 own request. On Friday night, he first saw Mr. McDonough, his court-appointed counsel, and also saw his wife.Two state psychiatrists examined Culombe during two hours on Saturday, March 2. At 10 p.m. that evening, when Culombe was alone in his cell, he called out to the guard assigned to the cell block and said that he wanted to volunteer some information relating to the Kurp's holdup. The guard had not previously spoken to Culombe during his watch except to say, "Hi, Art," when he first came on duty at 6 o'clock. Culombe now narrated a new version of what had happened at Kurp's. This was generally similar to his previous statements except that, in it, he admitted that he himself had shot Kurpiewski. The guard telephoned this information to Lieutenant Rome, and Culombe thanked him. At trial, the guard related the occasion and contents of this oral confession to the jury.Sunday morning, Rome, the guard to whom Culombe had confessed the night before, and another officer interviewed Culombe in the interrogation room. In answer to Rome's question, Culombe said that he wanted to change the story that he had previously given. He then said that he had shot Kurpiewski. Following the same procedure that had been used on Wednesday night, a detailed statement of his new version of the New Britain killings was composed and Culombe signed it. It was received in evidence at the trial. Later in the afternoon, attorney McDonough spoke with Culombe and Rome at Headquarters. He told Culombe not to sign any more papers or to talk to the police. He told Rome that he did not want the police bothering Culombe further, and requested that Culombe be removed from Headquarters to the County Jail. This was done.The following day, Monday, March 4, Lieutenant Rome and Detective O'Brien visited Culombe at the jail for Page 367 U. S. 620 half an hour. Rome brought a new typed statement prepared by the police. This was a substantially verbatim transcription of the document which Culombe had signed on Wednesday, but with all references to the second, separate crime committed on December 15, 1956, deleted. Rome read the transcription to Culombe and Culombe signed it. It was admitted at trial. Rome did not notify McDonough that Culombe's signature was to be obtained, because he was worried that, if he did, McDonough would not permit Culombe to sign. Rome testified that he could "do better without" the attorney: Culombe "was cooperative. . . . I needed his cooperation and got it."The man who was thus cooperative with the police, Arthur Culombe, was a thirty-three-year-old mental defective of the moron class with an intelligence quotient of sixty-four [Footnote 70] and a mental age of nine to nine and a half years. He was wholly illiterate. [Footnote 71] Expert witnesses for the State, whose appraisal of Culombe's mental condition was the most favorable adduced at trial, classified him as a "high moron" and "a rather high grade mentally defective," and testified that his reactions would not be the same as those of the chronological nine-year-old because his greater physical maturity and fuller background of experience gave him a perspective that the nine-year-old would not possess. Culombe was, however, "handicapped."Culombe had been in mental institutions for diagnosis and treatment. He had been in trouble with the law since he was an adolescent, and had been in prison at least twice in Connecticut since his successful escape from a Massachusetts training school for mental defectives. Page 367 U. S. 621 During the three years immediately preceding his arrest, he had held down, and adequately performed, a freight handler's job, and had supported his wife and two young children. A psychiatrist testifying for the State said that, although he was not a fearful man, Culombe was suggestible, and could be intimidated. [Footnote 72]Ten days after his last confession, on March 14, 1957, Culombe was indicted for first-degree murder.VIIn the view we take of this case, only the Wednesday confessions need be discussed. [Footnote 73] If these were coerced, Culombe's conviction, however convincingly supported by other evidence, cannot stand. Malinski v. New York, 324 U. S. 401. Stroble v. California, 343 U. S. 181; Payne v. Arkansas, 356 U. S. 560. On all the circumstances of this record, we are compelled to conclude that these confessions were not voluntary. By their use, petitioner was deprived of due process of law. Page 367 U. S. 622Consideration of the body of this Court's prior decisions which have found confessions coerced informs this conclusion. For, although the question whether a particular criminal defendant's will has been overborne and broken is one, it deserves repetition, that must be decided on the peculiar, individual set of facts of his case, it is only by a close, relevant comparison of situations that standards which are solid and effectively enforceable -- not doctrinaire or abstract -- can be evolved. In approaching these decisions, we may put aside at the outset cases involving physical brutality, [Footnote 74] threats of physical brutality, [Footnote 75] and such convincingly terror-arousing, and otherwise unexplainable, incidents of interrogation as the removal of prisoners from jail at night for questioning in secluded places, [Footnote 76] the shuttling of prisoners from jail to jail at distances from their homes, for questioning, [Footnote 77] the keeping of prisoners unclothed or standing on their feet for long periods during questioning. [Footnote 78] No such obvious, crude devices appear in this record. We may put aside also cases where deprivation of sleep has been used to sap a prisoner's strength and drug him [Footnote 79] or where bald disregard of his rudimentary need for food is a factor that adds to enfeeblement. [Footnote 80] Culombe was not subject to wakes or starvation. We may put aside cases stamped Page 367 U. S. 623 with the overhanging threat of the lynch mob, [Footnote 81] for, although it is true that Culombe saw crowds of people gathered to witness his booking and presentation in New Britain, this circumstance must be accounted of small significance here. There were no mobs at Hartford where he was held securely imprisoned at State Police Headquarters. [Footnote 82] Finally, we may put aside cases of gruelling, intensely unrelaxing questioning over protracted periods. [Footnote 83] Culombe's most extended session prior to his first confession ran three and a half hours with substantial respites. Because all of his questioning concerned not one, but several, offenses, it does not present an aspect of relentless, constantly repeated probing designed to break concentrated resistance. Particularly, the sustained four-and-a-half-hour interview that preceded the Wednesday midnight confession was almost wholly taken up with matters other than Kurp's, and at that time, far from resisting, Culombe was wholly cooperating with the police.Similarly, our decisions in Haley v. Ohio, 332 U. S. 596, and Blackburn v. Alabama, 361 U. S. 199, are not persuasive Page 367 U. S. 624 here. Haley, a fifteen-year-old boy, was arrested at his home and taken to a police station at midnight, where he was questioned by relays of officers until he confessed at 5 a.m. He had seen no friend or legal counsel during that time, and he was subsequently held incommunicado for three days. On the totality of circumstances, the Court held his confession coerced. But Culombe was never questioned concerning one crime for five hours. Indeed, he was never questioned during five hours at a stretch. He was never questioned in the early morning hours. And while Haley, whose questioning began immediately on his arrival at the station and did not let up until he confessed, had every reason to expect that his relay interrogators intended to keep the pace up till he broke, [Footnote 84] Culombe, at the time of his confessions, had been questioned on several previous days, and knew that the sessions had not run more than a few hours. Moreover, Culombe, despite his mental age of nine or nine and a half, cannot be viewed as a child. Expert testimony in the record, which the Connecticut courts may have credited, precludes the application to Culombe of standards appropriate to the adolescent Haley.Nor, without guessing, as untutored laymen and not professionally informed as judges, about the susceptibility of a mental defective to overreaching, can we apply to Culombe the standards controlling the case of the active psychotic, Blackburn. The expert evidence of hallucinations, delusional ideas, and complete loss of contact with his surroundings which we found uncontradicted in the Blackburn record has no counterpart in Culombe's. Also, Blackburn, like Haley, confessed after a protracted questioning session -- eight or nine hours, with a one-hour break, in Blackburn's case -- more exhausting than any single period that Culombe underwent. Page 367 U. S. 625On the other hand, what must enter our judgment about Culombe's mental equipment -- that he is suggestible and subject to intimidation -- does not permit us to attribute to him powers of resistance comparable to those which the Court found possessed by the defendant Cooper in Stein v. New York, 346 U. S. 156, who haggled for terms with the officials to whom he confessed, [Footnote 85] or the defendant James in Lisenba v. California, 314 U. S. 219, who bragged immediately before his confession that there were not enough men in the District Attorney's office to make him talk. Culombe was detained in the effective custody of the police for four nights and a substantial portion of five days before he confessed. During that time, he was questioned so repeatedly, although intermittently, that he cannot but have been made to believe what the police hardly denied, that the police wanted answers and were determined to get them. [Footnote 86] Other than Page 367 U. S. 626 his questioners and jailers and the police officials who booked him at New Britain, he spoke to only two people: Taborsky, of whom he was afraid, and his own wife, who, by prearrangement with Lieutenant Rome, asked him to tell the police the truth. [Footnote 87] The very duration of such a detention distinguishes this case from those in which we have found to be voluntary confessions given after several hours questioning or less on the day of arrest. See Stroble v. California, 343 U. S. 181; Cicenia v. La Gay, 357 U. S. 504; Ashdown v. Utah, 357 U. S. 426; cf. Crooker v. California, 357 U. S. 433. In other cases, in which we have sustained convictions resting on confessions made after prolonged detention, questioning of the defendant was sporadic, not systematic, [Footnote 88] or had been discontinued Page 367 U. S. 627 during a considerable period prior to confession, [Footnote 89] so that we did not find, in the circumstances there presented, that police interrogators had overborne the accused.The cases most closely comparable to the present one on their facts are Turner v. Pennsylvania, 338 U. S. 62; Johnson v. Pennsylvania, 340 U.S. 881, and Fikes v. Alabama, 352 U. S. 191. Turner, like Culombe, was arrested without a warrant and, without having been brought before a magistrate, [Footnote 90] was detained during four nights and about five days before he confessed. Like Culombe also, he was questioned in daylight and evening hours, sometimes by one, sometimes by several officers. Turner Page 367 U. S. 628 saw no visitors during his detention; Culombe saw only his wife, who gave him scant support. It is true that Turner's interrogation amounted to a total of more than twenty-three hours, as against the approximately twelve and one half hours that Culombe was questioned prior to his first confession, and that Turner was questioned on two days for as many as six hours (in two sessions, on each occasion), while Culombe was never questioned for more than three hours on any one day. It is true also that Turner's questioning involved only a single crime, not several. But Turner was not a mental defective, as is Culombe, and certain significant pressures brought to bear on Culombe -- the use of his family, the intimidating effect of the New Britain Police Court hearing -- were absent in the Turner record. The Court held Turner's confession coerced.Johnson, indicted as Turner's accomplice, was detained during approximately the same period and under the same conditions as was Turner. He was questioned, however, for only somewhat more than six hours over these five days, never more than an hour and a half at a sitting. At least five officers participated, at one time or another, in the questioning. At his separate trial, both his own confession and Turner's were admitted. This Court reversed per curiam. [Footnote 91]The facts on which the Court relied in Fikes were these. The defendant, a twenty-seven-year-old Negro with a third-grade education, apparently schizophrenic and highly suggestible, and who had previously been involved with the law on only one occasion, was apprehended by private persons in a white neighborhood in Selma, Alabama, at midnight on a Saturday. Jailed and held by the Page 367 U. S. 629 police on open charges, he was questioned for four and a half or five hours in two sessions on Sunday, and, during the second of these sessions, he was driven around the city to the locations of several unsolved burglaries. That day, he talked to the sheriff of his home county, called to Selma at his request. On Monday, he talked to his employer. After two hours of questioning in the morning, he was taken to a state prison fifty-five miles from Selma and eighty miles from his home, where he was questioned during several hours in the afternoon and a short while in the evening. Thereafter, he was kept in a segregation unit at the prison, where he saw only jailers and police officers. He did not consult counsel, nor was he brought before a magistrate -- despite the requirement of Alabama law that he be taken forthwith for a magistrate's hearing -- prior to the time of his confession.On Tuesday, he was not questioned. On Wednesday, he was questioned several hours in the afternoon and into the evening. On Thursday, the questioning totaled three and a half hours in two sessions, and on that day, his father, who had come to the prison to see him, was turned away. Thursday evening, his first confession, consisting largely of yes-and-no answers to often leading or suggestive questions by an examiner, was taken. Saturday, he was questioned again for three hours. A lawyer who came to the prison to see him was refused admission. On Sunday, however, Fikes' father was permitted to see him. The following Tuesday, after questioning of two and a half hours, he confessed a second time. Both confessions were admitted in evidence at his trial.This Court reversed Fikes' conviction. That reversal was on a record which showed, as does Culombe's, only intermittent interrogation and no total denial of friendly communication to the prisoner. It showed also, as does the present record, a background atmosphere of community outrage, but no appreciable threat of lynch violence. Page 367 U. S. 630 Particularly significant, Fikes, like Culombe, was suspected not of only one, but of a number of offenses under investigation. Fikes, concededly, was removed to a prison located at a considerable distance from his home, as Culombe was not. This is a factor to be considered. But, in Fikes, that removal was purportedly -- and not unconvincingly -- justified by concern for the prisoner's safety, compare Ward v. Texas, 316 U. S. 547, and was not, as such, a predominant element in our decision.We find that the present case is not less strong for reversal than Fikes v. Alabama. Culombe -- certainly not a stronger man than Fikes -- was apparently never informed of his constitutional rights, as was Fikes. Nevertheless, he expressly told the police that he wanted counsel, as Fikes did not, and his request was, in effect, frustrated. We are told that this was because Culombe did not know the name of any particular attorney, and the police do not regard it as an appropriate practice for them to suggest attorneys' names to prisoners. However laudable this policy may be in the general run of things, it manifests an excess of police delicacy when a totally illiterate man, detained at police headquarters and suspected of many serious felonies, obviously needs a lawyer and asks for one. In any event, in every county in Connecticut, there is a public defender. [Footnote 92]Moreover, Culombe was subjected to other pressures not brought to bear on Fikes. By Lieutenant Rome's arrangement, Mrs. Culombe was permitted -- indeed, asked -- to confront her husband and tell him to confess. Culombe's thirteen-year-old daughter was called upon in his presence to recount incriminating circumstances. This may fall short of the crude chicanery of employing persons intimate with an accused to play on his emotions, Page 367 U. S. 631 that was involved in Spano v. New York, 360 U. S. 315. But it appears, in conjunction with all of the other circumstances, to have had precisely the effect that Rome, by his own admission, calculated: "it is another way of getting a confession." [Footnote 93]What appears in this case, then, is this. Culombe was taken by the police and held in the carefully controlled environment of police custody for more than four days before he confessed. During that time, he was questioned -- questioned every day about the Kurp's affair -- and with the avowed intention not merely to check his story to ascertain whether there was cause to charge him, but to obtain a confession if a confession was obtainable.All means found fit were employed to this end. Culombe was not told that he had a right to remain silent. Although he said that he wanted a lawyer, the police made no attempt to give him the help he needed to get one. [Footnote 94] Instead of bringing him before a magistrate with Page 367 U. S. 632 reasonable promptness, as Connecticut law requires, to be duly presented for the grave crimes of which he was in fact suspected (and for which he had been arrested under the felony arrest statute), he was taken before the New Britain Police Court on the palpable ruse of a breach of the peace charge concocted to give the police time to pursue their investigation. This device is admitted. It had a two-fold effect. First, it kept Culombe in police hands without any of the protections that a proper magistrate's hearing would have assured him. Certainly, had he been brought before it charged with murder instead of an insignificant misdemeanor, no court would have failed to warn Culombe of his rights and arrange for appointment of counsel. [Footnote 95] Second, every circumstance of the Police Court's procedure was, in itself, potentially intimidating. Culombe had been told that morning that Page 367 U. S. 633 he would be presented in a court of law and would be able to consult counsel. Instead, he was led into a crowded room, penned in a corner, and, without ever being brought before the bench or given a chance to participate in any way, his case was disposed of. Culombe had been convicted of crimes before, and presumably was not ignorant of the way in which justice is regularly done. It would deny the impact of experience to believe that the impression which even his limited mind drew from this appearance before a court which did not even hear him, a court which may well have appeared a mere tool in the hands of the police, was not intimidating.That same evening, by arrangement of the State Police, Culombe's wife and daughter appeared at Headquarters for the interview that left him sobbing in his cell. The next morning, although the mittimus of the New Britain Police Court had committed Culombe to the Hartford Jail until released by due course of law, the police "borrowed" him, and later the questioning resumed. There can be no doubt of its purpose at this time. For Paige then "knew" -- if he was ever to know -- that Culombe was guilty. [Footnote 96] Paige opened by telling Culombe to stop lying Page 367 U. S. 634 and to say instead that he did not want to answer. But when Culombe said that he did not want to answer, Detective Murphy took over and repeated the same questions that Paige had asked.It is clear that this man's will was broken Wednesday afternoon. It is no less clear that his will was broken Wednesday night when, after several hours in a car with four policemen, two interviews with his wife and his apparently ill child, further inquiries made of him in the presence of the Police Commissioner, and a four-and-a-half-hour session which left him (by police testimony) "tired," he agreed to the composition of a statement that was not even cast in his own words. We do not overlook the fact that Culombe told his wife at their apartment that he wanted to cleanse his conscience and make a clean breast of things. This item, in the total context, does not overbalance the significance of all else, particularly since it was his wife who, the day before, at the request of Page 367 U. S. 635 Lieutenant Rome, had asked him to confess. [Footnote 97] Neither the Wednesday afternoon nor the Wednesday midnight statement may be proved against Culombe, and he convicted by their use, consistently with the Constitution.VIIRegardful as one must be of the problems of crime detection confronting the States, one does not reach the result here as an easy decision. In the case of such unwitnessed crimes as the Kurp's killings, the trails of detection challenge the most imaginative capacities of law enforcement officers. Often there is little else the police can do than interrogate suspects as an indispensable part of criminal investigation. But when interrogation of a prisoner is so long continued, with such a purpose, and under such circumstances, as to make the whole proceeding an effective instrument for extorting an unwilling admission of guilt, due process precludes the use of the confession thus obtained. Under our accusatorial system, such an exploitation of interrogation, whatever its usefulness, is not a permissible substitute for judicial trial.Reversed | U.S. Supreme CourtCulombe v. Connecticut, 367 U.S. 568 (1961)Culombe v. ConnecticutNo. 161Argued January 19, 1961Decided June 19, 1961367 U.S. 568SyllabusPetitioner, then a 33-year-old illiterate mental defective of the moron class who was suggestible and subject to intimidation, was taken into custody by state police officers on Saturday afternoon and held without benefit of counsel, though he requested counsel, without the prompt arraignment required by state law, and without being advised of his constitutional rights. He was questioned intermittently by police officers until Wednesday night, when, after being upset by seeing his wife and sick daughter and being urged by his wife to tell the truth, he confessed to participation in a holdup in which two men were murdered. This confession was admitted in evidence over his timely objection at his trial in a state court, and he was convicted of murder.Held: on all the circumstances of this record, this confession was not voluntary; its admission in evidence deprived petitioner of due process of law in violation of the fourteenth Amendment; and his conviction must be set aside.147 Conn. 194, 158 A.2d 239, reversed. |
339 | 1984_83-1622 | 1. The city was not named as a defendant in this case because the complaint was filed before Monroe v. Pape, 365 U. S. 167 -- which held that municipalities could not be held liable under § 1983 -- was overruled by Monell v. New York City Dept. of Social Services, 436 U. S. 658. The course of these proceedings after Monell was decided, however, made it abundantly clear that the action against the Director was in his official capacity and only in that capacity, and that petitioners claimed a right to recover damages from the city. Thus, petitioners would be entitled to amend their pleadings to conform to the proof and to the District Court's findings of fact, and it is appropriate for this Court to decide the legal issues without first insisting that such a formal amendment be filed. Pp. 469 U. S. 469-471.2. In cases under § 1983, a judgment against a public servant "in his official capacity" imposes liability on the entity that he represents. This rule was plainly implied in Monell, supra; Hutto v. Finney, 437 U. S. 678; and Owen v. City of Independence, 445 U. S. 622. The Court of Appeals erred in failing to apply the distinction between suits against Page 469 U. S. 465 government officials "in their individual capacities" entitled to qualified immunity, and suits in which only the liability of the municipality itself was at issue. Pp. 469 U. S. 471-473.719 F.2d 151, reversed and remanded.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. 469 U. S. 473. REHNQUIST, J., filed a dissenting opinion, post, p. 469 U. S. 474.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. [Footnote 1] They alleged and proved that Robert J. Allen, who was then Page 469 U. S. 466 a Memphis police officer, viciously assaulted them on March 5, 1977. [Footnote 2] They also proved that Allen had a history of violent and irregular behavior [Footnote 3] that was well known within the Police Department. [Footnote 4] Page 469 U. S. 467E. 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." [Footnote 5] 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." [Footnote 6]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 Page 469 U. S. 468 and punitive damages. The award against Director Chapman was, however, limited to compensatory damages. [Footnote 7] In its findings and conclusions, the District Court repeatedly and unambiguously stated that the liability of Director Chapman was "in his official capacity." [Footnote 8]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." [Footnote 9] 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 Page 469 U. S. 469 immunity which shields Director Chapman. Such an argument is without support in precedent or reason. [Footnote 10]"We granted certiorari to consider the validity of that argument. 467 U.S. 1204 (1984). We now reverse.IIn Monroe v. Pape, 365 U. S. 167, 365 U. S. 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. [Footnote 11]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. '[O]fficial capacity suits generally represent an action against an entity of which an officer is an agent. . . . Page 469 U. S. 470 Monell v. New York Department of Social Services, 436 U. S. 658, 436 U. S. 690 n. 55 (1978).' [Footnote 12]"The point was reiterated in counsel's opening statement, [Footnote 13] in the trial court's evidentiary rulings, [Footnote 14] in the findings on liability, [Footnote 15] 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. [Footnote 16]The Court of Appeals also repeatedly noted that the suit against Chapman was "in his official capacity." [Footnote 17] 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. [Footnote 18] It is Director Holt Page 469 U. S. 471 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. [Footnote 19] 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.IIIn 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 Page 469 U. S. 472 notice and an opportunity to respond. [Footnote 20] 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. [Footnote 21]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." [Footnote 22]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." [Footnote 23] 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 Page 469 U. S. 473 one hand, and those in which "only the liability of the municipality itself was at issue," on the other. [Footnote 24]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. [Footnote 25]It is so ordered | U.S. Supreme CourtBrandon v. Holt, 469 U.S. 464 (1985)Brandon v. HoltNo. 83-1622Argued November 5, 1984Decided January 21, 1985469 U.S. 464CERTIORARI TO THE UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUITSyllabusIn petitioners' action in Federal District Court under 42 U.S.C. § 1983, they alleged and proved that they had been assaulted by an officer of the Memphis Police Department who had a history of violent behavior that was well known within the Department. The court's judgment for petitioners, in addition to awarding compensatory and punitive damages against the officer, also awarded compensatory damages against the then Director of the Police Department "in his official capacity," the court having found that, although the Director had no actual knowledge of the officer's disciplinary record because of the Department's administrative policies, he should have known of the officer's dangerous propensities. The Court of Appeals reversed the judgment against the Director, holding that he had acted in good faith and was accordingly entitled to immunity. The court rejected petitioners' contention that the action against the Director was tantamount to an action against the city of Memphis, which could not claim the qualified immunity that its agents could assert, and thus was liable for the damages awarded against the Director. The court concluded that the suit was against an individual, not the city.Held: |
340 | 1992_91-7580 | torney General, Mary F. Keller, Deputy Attorney General, and Michael P. Hodge, Assistant Attorney General. *JUSTICE WHITE delivered the opinion of the Court.In this case, we are asked to decide whether the jury that sentenced petitioner, Gary Graham, to death was able to give effect, consistent with the Eighth and Fourteenth Amendments, to mitigating evidence of Graham's youth, family background, and positive character traits. Because this case comes to us on collateral review, however, we must first decide whether the relief that petitioner seeks would require announcement of a new rule of constitutional law, in contravention of the principles set forth in Teague v. Lane, 489 U. S. 288 (1989). Concluding that Graham's claim is barred by Teague, we affirm.IOn the night of May 13, 1981, Graham accosted Bobby Grant Lambert in the parking lot of a Houston, Texas, grocery store and attempted to grab his wallet. When Lambert resisted, Graham drew a pistol and shot him to death. Five months later, a jury rejected Graham's defense of mistaken identity and convicted him of capital murder in violation of Tex. Penal Code Ann. § 19.03(a)(2) (1989).At the sentencing phase of Graham's trial, the State offered evidence that Graham's murder of Lambert commenced a week of violent attacks during which the 17-yearold Graham committed a string of robberies, several assaults, and one rape. Graham did not contest this evidence. Rather, in mitigation, the defense offered testimony from Graham's stepfather and grandmother concerning his upbringing and positive character traits. The stepfather, Joe Samby, testified that Graham, who lived and worked with his natural father, typically visited his mother once or twice a*Steven B. Rosenfeld and Allen Cazier filed a brief for Miguel A. Richardson as amicus curiae urging reversal.464week and was a "real nice, respectable" person. Samby further testified that Graham would pitch in on family chores and that Graham, himself a father of two young children, would "buy ... clothes for his children and try to give them food."Graham's grandmother, Emma Chron, testified that Graham had lived with her off and on throughout his childhood because his mother had been hospitalized periodically for a "nervous condition." Chron also stated that she had never known Graham to be violent or disrespectful, that he attended church regularly while growing up, and that "[h]e loved the Lord." In closing arguments to the jury, defense counsel depicted Graham's criminal behavior as aberrational and urged the jury to take Graham's youth into account in deciding his punishment.In accord with the capital sentencing statute then in effect,l Graham's jury was instructed that it was to answer three "special issues":"(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981).The jury unanimously answered each of these questions in the affirmative, and the court, as required by the statute,1 The Texas Legislature amended the statute in 1991. Those changes are set forth in the opinion of the Court of Appeals. 950 F.2d 1009, 1012, n. 1 (CA5 1992) (en bane).465sentenced Graham to death. Art. 37.071(e). The Texas Court of Criminal Appeals affirmed Graham's conviction and sentence in an unpublished opinion.In 1987, Graham unsuccessfully sought postconviction relief in the Texas state courts. The following year, Graham petitioned for a writ of habeas corpus in Federal District Court pursuant to 28 U. s. C. § 2254, contending, inter alia, that his sentencing jury had been unable to give effect to his mitigating evidence within the confines of the statutory "special issues." The District Court denied relief and the Court of Appeals for the Fifth Circuit denied Graham's petition for a certificate of probable cause to appeal. Graham v. Lynaugh, 854 F.2d 715 (1988). The Court of Appeals found Graham's claim to be foreclosed by our recent decision in Franklin v. Lynaugh, 487 U. S. 164 (1988), which held that a sentencing jury was fully able to consider and give effect to mitigating evidence of a defendant's clean prison disciplinary record by way of answering Texas' special issues. 854 F. 2d, at 719-720.While Graham's petition for a writ of certiorari was pending here, the Court announced its decision in Penry v. Lynaugh, 492 U. S. 302 (1989), holding that evidence of a defendant's mental retardation and abused childhood could not be given mitigating effect by a jury within the framework of the special issues.2 We then granted Graham's petition, vacated the judgment below, and remanded for reconsideration in light of Penry. Graham v. Lynaugh, 492 U. S. 915 (1989). On remand, a divided panel of the Court of Appeals reversed the District Court and vacated Graham's death sentence. 896 F.2d 893 (CA5 1990).2 Penry further held that its result was dictated by the Court's prior decisions in Eddings v. Oklahoma, 455 U. S. 104 (1982), and Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion), within the sense required by Teague v. Lane, 489 U. S. 288 (1989), and thus that its rule applied to cases on collateral review. See Penry, 492 U. S., at 314-319.466On rehearing en banc, the Court of Appeals vacated the panel's decision and reinstated its prior mandate affirming the District Court. 950 F.2d 1009 (1992). The court reviewed our holdings on the constitutional requirement that a sentencer be permitted to consider and act upon any relevant mitigating evidence put forward by a capital defendant, and then rejected Graham's claim on the merits. The court noted that this Court had upheld the Texas capital sentencing statute against a facial attack in Jurek v. Texas, 428 U. S. 262 (1976), after acknowledging that "'the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors.'" 950 F. 2d, at 1019 (quoting Jurek, supra, at 272). Noting that the petitioner in Jurek had himself proffered mitigating evidence of his young age, employment history, and aid to his family, the Court of Appeals concluded that "[a]t the very least, Jurek must stand for the proposition that these mitigating factors-relative youth and evidence reflecting good character traits such as steady employment and helping others-are adequately covered by the second special issue" concerning the defendant's risk of future dangerousness. 950 F. 2d, at 1029. "Penry cannot hold otherwise," the court observed, "and at the same time not be a 'new rule' for Teague purposes." Ibid. Accordingly, the court ruled that the jury that sentenced Graham could give adequate mitigating effect to his evidence of youth, unstable childhood, and positive character traits by way of answering the Texas special issues.We granted certiorari, 504 U. S. 972 (1992), and now affirm.II ABecause this case is before us on Graham's petition for a writ of federal habeas corpus, "we must determine, as a threshold matter, whether granting him the relief he seeks would create a 'new rule'" of constitutional law. Penry v.467Lynaugh, supra, at 313; see also Teague v. Lane, 489 U. S., at 301 (plurality opinion). "Under Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions." Penry, supra, at 313. This restriction on our review applies to capital cases as it does to those not involving the death penalty. 492 U. S., at 314; Stringer v. Black, 503 U. S. 222 (1992); Sawyer v. Smith, 497 U. S. 227 (1990); Saffle v. Parks, 494 U. S. 484 (1990); Butler v. McKellar, 494 U. S. 407 (1990).A holding constitutes a "new rule" within the meaning of Teague if it "breaks new ground," "imposes a new obligation on the States or the Federal Government," or was not "dictated by precedent existing at the time the defendant's conviction became final." Teague, supra, at 301 (emphasis in original). While there can be no dispute that a decision announces a new rule if it expressly overrules a prior decision, "it is more difficult ... to determine whether we announce a new rule when a decision extends the reasoning of our prior cases." Saffle v. Parks, 494 U. S., at 488. Because the leading purpose of federal habeas review is to "ensur[e] that state courts conduct criminal proceedings in accordance with the Constitution as interpreted at the time of th[ose] proceedings," ibid., we have held that "[t]he 'new rule' principle ... validates reasonable, good-faith interpretations of existing precedents made by state courts." Butler v. McKellar, 494 U. S., at 414. This principle adheres even if those goodfaith interpretations "are shown to be contrary to later decisions." Ibid. Thus, unless reasonable jurists hearing petitioner's claim at the time his conviction became final "would have felt compelled by existing precedent" to rule in his favor, we are barred from doing so now. Saffle v. Parks, supra, at 488.BPetitioner's conviction and sentence became final on September 10, 1984, when the time for filing a petition for certiorari from the judgment affirming his conviction expired.468See Griffith v. Kentucky, 479 U. S. 314, 321, n. 6 (1987). Surveying the legal landscape as it then existed, we conclude that it would have been anything but clear to reasonable jurists in 1984 that petitioner's sentencing proceeding did not comport with the Constitution.1In the years since Furman v. Georgia, 408 U. S. 238 (1972), the Court has identified, and struggled to harmonize, two competing commandments of the Eighth Amendment. On one hand, as Furman itself emphasized, States must limit and channel the discretion of judges and juries to ensure that death sentences are not meted out "wantonly" or "freakishly." Id., at 310 (Stewart, J., concurring). On the other, as we have emphasized in subsequent cases, States must confer on the sentencer sufficient discretion to take account of the "character and record of the individual offender and the circumstances of the particular offense" to ensure that "death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U. S. 280, 304-305 (1976) (plurality opinion of Stewart, Powell, and STEVENS, JJ.).Four years after Furman, and on the same day that Woodson was announced, the Court in Jurek v. Texas, supra, examined the very statutory scheme under which Graham was sentenced and concluded that it struck an appropriate balance between these constitutional concerns. The Court thus rejected an attack on the entire statutory scheme for imposing the death penalty and in particular an attack on the so-called "special issues." It is well to set out how the Court arrived at its judgment. The joint opinion of Justices Stewart, Powell, and STEVENS observed that while Texas had not adopted a list of aggravating circumstances that would justify the imposition of the death penalty, "its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose." Id., at 270. The joint opinion went on to say469that because the constitutionality of a capital sentencing system also requires the sentencing authority to consider mitigating circumstances and since the Texas statute did not speak of mitigating circumstances and instead directs only that the jury answer three questions, "the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors." Id., at 272.The joint opinion then recognized that the Texas Court ofCriminal Appeals had held:"'In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.' 522 S. W. 2d, at 939-940." Id., at 272-273.Based on this assurance, the opinion characterized the Texas sentencing procedure as follows:"Thus, Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital-sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual470offender before it can impose a sentence of death." Id., at 273-274."What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced." Id., at 276.The joint opinion's ultimate conclusion was:"Texas' capital-sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be 'wantonly' or 'freakishly' imposed, it does not violate the Constitution. Furman v. Georgia, 408 U. S., at 310 (STEWART, J., concurring)." Ibid.It is plain enough, we think, that the joint opinion could reasonably be read as having arrived at this conclusion only after being satisfied that the mitigating evidence introduced by the defendant, including his age, would be given constitutionally adequate consideration in the course of the jury's deliberation on the three special issues. Three other Justices concurred in the holding that the Texas procedures for471imposing the death penalty were constitutional. Id., at 278279 (WHITE, J., concurring in judgment).Two years after Jurek, in another splintered decision, Lockett v. Ohio, 438 U. S. 586 (1978), the Court invalidated an Ohio death penalty statute that prevented the sentencer from considering certain categories of relevant mitigating evidence. In doing so, a plurality of the Court consisting of Chief Justice Burger and Justices Stewart, Powell, and STEVENS stated that the constitutional infirmities in the Ohio statute could "best be understood by comparing it with the statutes upheld in Gregg, Proffitt, and Jurek." Id., at 606. This the plurality proceeded to do, recounting in the process that the Texas statute had been held constitutional in Jurek because it permitted the sentencer to consider whatever mitigating circumstances the defendant could show. Emphasizing that "an individualized [sentencing] decision is essential in capital cases," the plurality concluded:"There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors that may call for a less severe penalty." 438 U. S., at 605.Obviously, the plurality did not believe the Texas statute suffered this infirmity.The plurality's rule was embraced by a majority of the Court four years later in Eddings v. Oklahoma, 455 U. S. 104 (1982). There, the Court overturned a death sentence on the ground that the judge who entered it had felt himself bound by state law to disregard mitigating evidence concerning the defendant's troubled youth and emotional disturbance. The Court held that, "[j]ust as the State may not by472statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence." Id., at 113-114 (emphasis omitted); see also Hitchcock v. Dugger, 481 U. S. 393, 394 (1987); Skipper v. South Carolina, 476 U. S. 1, 4-5 (1986). The Eddings opinion rested on Lockett and made no mention of Jurek.We cannot say that reasonable jurists considering petitioner's claim in 1984 would have felt that these cases "dictated" vacatur of petitioner's death sentence. See Teague, 489 U. S., at 301. To the contrary, to most readers at least, these cases reasonably would have been read as upholding the constitutional validity of Texas' capital sentencing scheme with respect to mitigating evidence and otherwise. Lockett expressly embraced the Jurek holding, and Eddings signaled no retreat from that conclusion. It seems to us that reasonable jurists in 1984 would have found that, under our cases, the Texas statute satisfied the commands of the Eighth Amendment: It permitted petitioner to place before the jury whatever mitigating evidence he could show, including his age, while focusing the jury's attention upon what that evidence revealed about the defendant's capacity for deliberation and prospects for rehabilitation.We find nothing in our more recent cases, to the extent they are relevant, that would undermine this analysis. In 1988, in Franklin v. Lynaugh, 487 U. S. 164, we rejected a claim that the Texas special issues provided an inadequate vehicle for jury consideration of evidence of a defendant's clean prison disciplinary record. There, a plurality of the Court observed that "[i]n 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." Id., at 178. Moreover, the plurality found"unavailing petitioner's reliance on this Court's statement in Eddings, 455 U. S., at 114, that the sentencing473jury may not be precluded from considering 'any relevant, mitigating evidence.' 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." Id., at 179 (citations omitted).To be sure, JUSTICE O'CONNOR'S opinion concurring in the judgment in Franklin expressed "doubts" about the validity of the Texas death penalty statute as that statute might be applied in future cases. Id., at 183. The Justice agreed, however, that the special issues adequately accounted for the mitigating evidence presented in that case. Ibid.This brings us to Penry v. Lynaugh, 492 U. S. 302 (1989), upon which petitioner chiefly relies. In that case, the Court overturned a prisoner's death sentence, finding that the Texas special issues provided no genuine opportunity for the jury to give mitigating effect to evidence of his mental retardation and abused childhood. The Court considered these factors to be mitigating because they diminished the defendant's ability "to control his impulses or to evaluate the consequences of his conduct," and therefore reduced his moral culpability. Id., at 322. The Texas special issues permitted the jury to consider this evidence, but not necessarily in a way that would benefit the defendant. Although Penry's evidence of mental impairment and childhood abuse indeed had relevance to the "future dangerousness" inquiry, its relevance was aggravating only. "Penry's mental retardation and history of abuse is thus a two-edged sword: it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future." Id., at 324. Whatever relevance Penry's evidence474may have had to the other two special issues was too tenuous to overcome this aggravating potential. Because it was impossible to give meaningful mitigating effect to Penry's evidence by way of answering the special issues, the Court concluded that Penry was constitutionally entitled to further instructions "informing the jury that it could consider and give effect to [Penry's] evidence ... by declining to impose the death penalty." Id., at 328.We do not read Penry as effecting a sea change in this Court's view of the constitutionality of the former Texas death penalty statute; it does not broadly suggest the invalidity of the special issues framework.3 Indeed, any such reading of Penry would be inconsistent with the Court's conclusion in that case that it was not announcing a "new rule" within the meaning of Teague v. Lane, 489 U. S. 288 (1989). See Penry, supra, at 318-319. As we have explained in subsequent cases:"To the extent that Penry's claim was that the Texas system prevented the jury from giving any mitigating effect to the evidence of his mental retardation and abuse in childhood, the decision that the claim did not require the creation of a new rule is not surprising. Lockett and Eddings command that the State must allow the jury to give effect to mitigating evidence in making the sentencing decision; Penry's contention was that Texas barred the jury from so acting. Here, by contrast,3 To the contrary, the Court made clear in that case the limited nature of the question presented: "Penry does not challenge the facial validity of the Texas death penalty statute, which was upheld against an Eighth Amendment challenge in Jurek v. Texas, 428 U. S. 262 (1976). Nor does he dispute that some types of mitigating evidence can be fully considered by the sentencer in the absence of special jury instructions. See Franklin v. Lynaugh, 487 U. S. 164,175 (1988) (plurality opinion); id., at 185-186 (O'CONNOR, J., concurring in judgment). Instead, Penry argues that, on the facts of this case, the jury was unable to fully consider and give effect to the mitigating evidence of his mental retardation and abused background in answering the three special issues." 492 U. S., at 315.475there is no contention that the State altogether prevented Parks' jury from considering, weighing, and giving effect to all of the mitigating evidence that Parks put before them; rather, Parks' contention is that the State has unconstitutionally limited the manner in which his mitigating evidence may be considered. As we have concluded above, the former contention would come under the rule of Lockett and Eddings; the latter does not." Saffle v. Parks, 494 U. S., at 491.In our view, the rule that Graham seeks is not commanded by the cases upon which Penry rested. In those cases, the constitutional defect lay in the fact that relevant mitigating evidence was placed beyond the effective reach of the sentencer. In Lockett, Eddings, Skipper, and Hitchcock, the sentencer was precluded from even considering certain types of mitigating evidence. In Penry, the defendant's evidence was placed before the sentencer but the sentencer had no reliable means of giving mitigating effect to that evidence. In this case, however, Graham's mitigating evidence was not placed beyond the jury's effective reach. Graham indisputably was permitted to place all of his evidence before the jury and both of Graham's two defense lawyers vigorously urged the jury to answer "no" to the special issues based on this evidence. Most important, the jury plainly could have done so consistent with its instructions. The jury was not forbidden to accept the suggestion of Graham's lawyers that his brief spasm of criminal activity in May 1981 was properly viewed, in light of his youth, his background, and his character, as an aberration that was not likely to be repeated. Even if Graham's evidence, like Penry's, had significance beyond the scope of the first special issue, it is apparent that Graham's evidence-unlike Penry's-had mitigating relevance to the second special issue concerning his likely future dangerousness. Whereas Penry's evidence compelled an affirmative answer to that inquiry, despite its mitigating significance, Graham's evidence quite readily could have476supported a negative answer. This distinction leads us to conclude that neither Penry nor any of its predecessors "dictates" the relief Graham seeks within the meaning required by Teague. See Stringer v. Black, 503 U. S., at 238 (SOUTER, J., dissenting): "The result in a given case is not dictated by precedent if it is 'susceptible to debate among reasonable minds,' or, put differently, if 'reasonable jurists may disagree'" (citations omitted).Moreover, we are not convinced that Penry could be extended to cover the sorts of mitigating evidence Graham suggests without a wholesale abandonment of Jurek and perhaps also of Franklin v. Lynaugh. As we have noted, Jurek is reasonably read as holding that the circumstance of youth is given constitutionally adequate consideration in deciding the special issues. We see no reason to regard the circumstances of Graham's family background and positive character traits in a different light. Graham's evidence of transient upbringing and otherwise nonviolent character more closely resembles Jurek's evidence of age, employment history, and familial ties than it does Penry's evidence of mental retardation and harsh physical abuse. As the dissent in Franklin made clear, virtually any mitigating evidence is capable of being viewed as having some bearing on the defendant's "moral culpability" apart from its relevance to the particular concerns embodied in the Texas special issues. See Franklin, 487 U. S., at 190 (STEVENS, J., dissenting). It seems to us, however, that reading Penry as petitioner urges-and thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues-would be to require in all cases that a fourth "special issue" be put to the jury: "'Does any mitigating evidence before you, whether or not relevant to the above [three] questions, lead you to believe that the death penalty should not be imposed?'" The Franklin plurality rejected precisely this contention, finding it irreconcilable with the477Court's holding in Jurek, see Franklin, supra, at 180, n. 10, and we affirm that conclusion today. Accepting Graham's submission would unmistakably result in a new rule under Teague. See Saffle v. Parks, supra, at 488; Butler v. McKellar, 494 U. S., at 412.In sum, even if Penry reasonably could be read to suggest that Graham's mitigating evidence was not adequately considered under the former Texas procedures, that is not the relevant inquiry under Teague. Rather, the determinative question is whether reasonable jurists reading the case law that existed in 1984 could have concluded that Graham's sentencing was not constitutionally infirm. We cannot say that all reasonable jurists would have deemed themselves compelled to accept Graham's claim in 1984. Nor can we say, even with the benefit of the Court's subsequent decision in Penry, that reasonable jurists would be of one mind in ruling on Graham's claim today. The ruling Graham seeks, therefore, would be a "new rule" under Teague.2Having decided that the relief Graham seeks would require announcement of a new rule under Teague, we next consider whether that rule nonetheless would fall within one of the two exceptions recognized in Teague to the "new rule" principle. "The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe, see Teague, 489 U. S., at 311, or addresses a 'substantive categorical guarante[e] accorded by the Constitution,' such as a rule 'prohibiting a certain category of punishment for a class of defendants because of their status or offense.'" Saffle v. Parks, supra, at 494 (quoting Penry, 492 U. S., at 329, 330). Plainly, this exception has no application here because the rule Graham seeks "would neither decriminalize a class of conduct nor prohibit the imposition of capital punishment on a particular class of persons." 494 U. S., at 495.478The second exception permits federal courts on collateral review to announce" 'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Ibid. Whatever the precise scope of this exception, it is clearly meant to apply only to a small core of rules requiring "observance of 'those procedures that ... are "implicit in the concept of ordered liberty."'" Teague, supra, at 311 (quoting Mackey v. United States, 401 U. S. 667, 693 (1971) (Harlan, J., concurring in judgments in part and dissenting in part) (in turn quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937))); see also Butler v. McKellar, supra, at 416. As the plurality cautioned in Teague, "[b]ecause we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge." 489 U. S., at 313. We do not believe that denying Graham special jury instructions concerning his mitigating evidence of youth, family background, and positive character traits "seriously diminish[ed] the likelihood of obtaining an accurate determination" in his sentencing proceeding. See Butler v. M cKellar, supra, at 416. Accordingly, we find the second Teague exception to be inapplicable as well.The judgment of the Court of Appeals is thereforeAffirmed | OCTOBER TERM, 1992SyllabusGRAHAM v. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISIONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 91-7580. Argued October 14, 1992-Decided January 25,1993Petitioner Graham's capital murder conviction and death sentence became final in 1984. After unsuccessfully seeking postconviction relief in the Texas state courts, he filed this habeas corpus action in Federal District Court, alleging, inter alia, that the three "special issues" his sentencing jury was required to answer under the state capital sentencing statute then in existence prevented the jury from giving effect, consistent with the Eighth and Fourteenth Amendments, to mitigating evidence of his youth, unstable family background, and positive character traits. In affirming the District Court's denial of relief, the Court of Appeals reviewed this Court's holdings on the constitutional requirement that a sentencer be permitted to consider and act upon any relevant mitigating evidence put forth by a capital defendant, and then ruled that Graham's jury could give adequate mitigating effect to the evidence in question by way of answering the special issues.Held: Graham's claim is barred because the relief he seeks would require announcement of a new rule of constitutional law, in contravention of the principles set forth in Teague v. Lane, 489 U. S. 288, 301 (plurality opinion). pp. 466-478.(a) A holding that was not "dictated by precedent existing at the time the defendant's conviction became final" constitutes a "new rule," 489 U. S., at 301, which, absent the applicability of one of two exceptions, cannot be applied or announced in a case on collateral review, Penry v. Lynaugh, 492 U. S. 302, 313. Thus, the determinative question is whether reasonable jurists hearing Graham's claim in 1984 "would have felt compelled by existing precedent" to rule in his favor. See Saffle v. Parks, 494 U. S. 484, 488. Pp. 466-467.(b) It cannot be said that reasonable jurists hearing Graham's claim in 1984 would have felt that existing precedent "dictated" vacatur of his death sentence within Teague's meaning. To the contrary, the joint opinion of Justices Stewart, Powell, and STEVENS, in Jurek v. Texas, 428 U. S. 262, 270-276, could reasonably be read as having upheld the constitutionality of the very statutory scheme under which Graham was sentenced, including the so-called "special issues," only after being satis-462Syllabusfied that petitioner's mitigating evidence, including his age, would be given constitutionally adequate consideration in the course of the jury's deliberation on the special issues. Moreover, Lockett v. Ohio, 438 U. S. 586, 605-606 (plurality opinion), expressly embraced the Jurek holding, and Eddings v. Oklahoma, 455 U. S. 104, signaled no retreat from that conclusion. Thus, it is likely that reasonable jurists in 1984 would have found that, under these cases, the Texas statute satisfied the commands of the Eighth Amendment: It permitted Graham to place before the jury whatever mitigating evidence he could show, including his age, while focusing the jury's attention upon what that evidence revealed about his capacity for deliberation and prospects for rehabilitation. Nothing in this Court's post-1984 cases, to the extent they are relevant, would undermine this analysis. Even if Penry, supra, upon which Graham chiefly relies, reasonably could be read to suggest that his mitigating evidence was not adequately considered under the Texas procedures, that does not answer the determinative question under Teague. Pp. 467-477.(c) The new rule that Graham seeks would not fall within either of the Teague exceptions. The first exception plainly has no application here because Graham's rule would neither decriminalize a class of conduct nor prohibit the imposition of capital punishment on a particular class of persons. See Saffle, supra, at 495. The second exception, for watershed rules implicating fundamental fairness and accuracy, is also inapplicable, since denying Graham special jury instructions concerning his mitigating evidence would not seriously diminish the likelihood of obtaining an accurate determination in his sentencing proceeding. See Butler v. McKellar, 494 U. S. 407, 416. Pp. 477-478.950 F.2d 1009, affirmed.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. THOMAS, J., filed a concurring opinion, post, p. 478. STEVENS, J., filed a dissenting opinion, post, p. 500. SOUTER, J., filed a dissenting opinion, in which BLACKMUN, STEVENS, and O'CONNOR, JJ., joined, post, p. 504.Michael E. Tigar argued the cause for petitioner. With him on the briefs was Jeffrey J. Pokorak.Charles A. Palmer, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Dan Morales, Attorney General, William C. Zapalac, Assistant Attorney General, Will Pryor, First Assistant At-463Full Text of Opinion |
341 | 1963_138 | MR. JUSTICE GOLDBERG delivered the opinion of the Court.We have held today that the Fifth Amendment privilege against self-incrimination must be deemed fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1. This case presents a related issue: whether one jurisdiction within our federal structure may compel a witness, whom it has immunized from prosecution under its laws, to give testimony which might then be used to convict him of a crime against another such jurisdiction. [Footnote 1]Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminated them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York. [Footnote 2] Notwithstanding this grant of immunity, they still refused to respond to the questions on the Page 378 U. S. 54 ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend. Petitioners were thereupon held in civil and criminal contempt of court. The New Jersey Supreme Court reversed the criminal contempt conviction on procedural grounds but, relying on this Court's decisions in Knapp v. Schweitzer, 357 U. S. 371; Feldman v. United States, 322 U. S. 487; and United States v. Murdock, 284 U. S. 141, affirmed the civil contempt judgments on the merits. The court held that a State may constitutionally compel a witness to give testimony which might be used in a federal prosecution against him. [Footnote 3] 39 N.J. 436, 452-458, 189 A.2d 36, 46-49.Since a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination, Counselman v. Hitchcock, 142 U. S. 547, we must now decide the fundamental constitutional question of whether, absent an immunity provision, one jurisdiction in our federal structure may compel a witness to give testimony which might incriminate him under the laws of another jurisdiction. The answer to this question must depend, of course, on whether such an application of the privilege promotes or defeats its policies and purposes. Page 378 U. S. 55I. THE POLICIES OF THE PRIVILEGEThe privilege against self-incrimination "registers an important advance in the development of our liberty -- one of the great landmarks in man's struggle to make himself civilized." Ullmann v. United States, 350 U. S. 422, 350 U. S. 426. [Footnote 4] It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial, rather than an inquisitorial, system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates"a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,"8 Wigmore, Evidence (McNaughton rev., 1961) 317; our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life," United States v. Grunewald, 233 F.2d 556, 581-582 (Frank J., dissenting), rev'd, 353 U. S. 353 U.S. 391; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes "a shelter to the guilty," is often "a protection to the innocent." Quinn v. United States, 349 U. S. 155, 349 U. S. 162.Most, if not all, of these policies and purposes are defeated when a witness "can be whipsawed into incriminating himself under both state and federal law even though" the constitutional privilege against self-incrimination is applicable to each. Cf. Knapp v. Schweitzer, 357 U. S. 371, 357 U. S. 385 (dissenting opinion of MR. JUSTICE BLACK). This has become especially true in our age of Page 378 U. S. 56 "cooperative federalism," where the Federal and State Governments are waging a united front against many types of criminal activity. [Footnote 5] Page 378 U. S. 57Respondent contends, however, that we should adhere to the "established rule" that the constitutional privilege against self-incrimination does not protect a witness in one jurisdiction against being compelled to give testimony which could be used to convict him in another jurisdiction. This "rule" has three decisional facets: United States v. Murdock, 284 U. S. 141, held that the Federal Government could compel a witness to give testimony which might incriminate him under state law; Knapp v. Schweitzer, 357 U. S. 371, held that a State could compel a witness to give testimony which might incriminate him under federal law; and Feldman v. United States, 322 U. S. 487, held that testimony thus compelled by a State could be introduced into evidence in the federal courts.Our decision today in Malloy v. Hogan, supra, necessitates a reconsideration of this rule. [Footnote 6] Our review of the pertinent cases in this Court and of their English antecedents reveals that Murdock did not adequately consider the relevant authorities, and has been significantly weakened by subsequent decisions of this Court, and, further, that the legal premises underlying Feldman and Knapp have since been rejected. Page 378 U. S. 58II. THE EARLY ENGLISH AND AMERICAN CASESA. The English Cases Before the Adoption of the ConstitutionIn 1749, the Court of Exchequer decided East India Co. v. Campbell, 1 Ves.Sen. 246, 27 Eng.Rep. 1010. The defendant in that case refused to "discover" certain information in a proceeding in an English court on the ground that it might subject him to punishment in the courts of India. The court unanimously held that the privilege against self-incrimination protected a witness in an English court from being compelled to give testimony which could be used to convict him in the courts of another jurisdiction. The court stated the rule to be:"that this court shall not oblige one to discover that which, if he answers in the affirmative, will subject him to the punishment of a crime . . . , and that he is punishable appears from the case of Omichund v. Barker, 1 Atk. 21, as a jurisdiction is erected in Calcutta for criminal facts where he may be sent to government and tried, thought not punishable here; like the case of one who was concerned in a rape in Ireland and sent over there by the government to be tried, although the court of B.R. here refused to do it . . . , for the government may send persons to answer for a crime wherever committed, that he may not involve his country, and to prevent reprisals."1 Ves.Sen. at 247, 27 Eng.Rep. at 1011.In the following year, this rule was applied in a case involving separate systems of courts and law located within the same geographic area. The defendant in Brownsword v. Edwards, 2 Ves.Sen. 243, 28 Eng.Rep. 157, refused to "discover, whether she was lawfully married" to a certain individual, on the ground that, if she admitted to the marriage, she would be confessing to an act which, although legal under the common law, would render her Page 378 U. S. 59 "liable to prosecution in ecclesiastical court." The Lord Chancellor said:"This appears a very plain case, in which defendant may protect herself from making a discovery of her marriage, and I am afraid, if the court should overrule such a plea, it would be setting up the oath ex officio which then the parliament in the time of Charles I. would in vain have taken away if the party might come into this court for it. The general rule is that no one is bound to answer so as to subject himself to punishment, whether that punishment arises by the ecclesiastical law of the land."2 Ves.Sen. at 244-245, 28 Eng.Rep. at 158.B. The Saline Bank CaseIt was against this background of English case law that this Court, in 1828, decided United States v. Saline Bank of Virginia, 1 Pet. 100. The Government, seeking to recover certain bank deposits, brought suit in the District Court against the bank and a number of its stockholders. The defendants resisted discovery of"any matters whereby they may impeach or accuse themselves of any offence or crime, or be liable by the laws of the commonwealth of Virginia, to penalties and grievous fines. . . ."Id., 1 Pet. at 26 U. S. 102. The unanimous opinion of the Court, delivered by Chief Justice Marshall, reads as follows:"This is a bill in equity for a discovery and relief. The defendants set up a plea in bar, alleging that the discovery would subject them to penalties under the statute of Virginia.""The Court below decided in favour of the validity of the plea, and dismissed the bill.""It is apparent that, in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule Page 378 U. S. 60 clearly is that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it.""The decree of the Court below is therefore affirmed."Id. at 26 U. S. 104.This case squarely holds that the privilege against self-incrimination protects a witness in a federal court from being compelled to give testimony which could be used against him in a state court.C. Subsequent Development of the English RuleIn 1851, the English Court of Chancery decided King of the Two Sicilies v. Willcox, 1 Sim.(N.S.) 301, 61 Eng.Rep. 116, a case which this Court, in United States v. Murdock, 284 U. S. 141, erroneously cited as representing the settled "English rule" that a witness is not protected "against disclosing offenses in violation of the laws of another country." Id. at 284 U. S. 149. Defendants in that case resisted discovery of information, which, they asserted, might subject them to prosecution under the laws of Sicily. In denying their claim, the Vice Chancellor said:"The rule relied on by the defendants is one which exists merely by virtue of our own municipal law, and must, I think, have reference exclusively to matters penal by that law: to matters as to which, if disclosed, the judge would be able to say as matter of law whether it could or could not entail penal consequences."1 Sim. (N.S.) at 329, 61 Eng.Rep. at 128.Two reasons were given in support of this statement: (1)"The impossibility of knowing, as matter of law, to what cases the objection, when resting on the danger of incurring penal consequences in a foreign country, may extend . . . ,"id. at 331, 61 Eng.Rep. at 128; and (2) the fact that,"in such a case, in order to make the disclosure dangerous to the party who objects, it is essential that he Page 378 U. S. 61 should first quit the protection of our laws, and wilfully go within the jurisdiction of the laws he has violated. . . . [Footnote 7]"Ibid., 61 Eng.Rep. at 128.Within a few years, the pertinent part of King of the Two Sicilies was specifically overruled by the Court of Chancery Appeal in United States of America v. McRae, L.R., 3 Ch.App. 79 (1867), a case not mentioned by this Court in United States v. Murdock, supra. In McRae, the United States sued in an English court for an accounting and payment of moneys allegedly received by the defendant as agent for the Confederate States during the Civil War. The defendant refused to answer questions on the ground that to do so would subject him to penalties under the laws of the United States. The United States argued that the"protection from answering applies only where a person might expose himself to the peril of a penal proceeding in this country [England], and not to the case where the liability to penalty or forfeiture is incurred by the breach of the laws of Page 378 U. S. 62 a foreign country [the United States]."L.R., 3 Ch.App. at 83-84. The United States relied on King of the Two Sicilies v. Willcox, supra. The Lord Chancellor sustained the claim of privilege and limited King of the Two Sicilies to its facts. He said:"I quite agree in the general principles stated by Lord Cranworth, and in their application to the particular case before him. . . . [The defendants there] did not furnish the least information what the foreign law was upon the subject, though it was necessary for the Judge to know this with certainty before he could say whether the acts done by the persons who objected to answer had rendered them amenable to punishment by that law or not. . . . [Moreover,] it was doubtful whether the Defendants would ever be within the reach of a prosecution, and their being so depended on their voluntary return to [Sicily]."L.R., 3 Ch.App. at 84-87.In refusing to follow King of the Two Sicilies beyond its particular facts, the court said:"But, in giving judgment, Lord Cranworth went beyond the particular case and expressed his opinion that the rule upon which the Defendants relied to protect them from answering was one which existed merely by virtue of our own municipal law, and which must have reference exclusively to matters penal by that law. It was unnecessary to lay down so broad a proposition to support the judgment which he pronounced. . . . What would have been Lord Cranworth's opinion upon (the present) state of circumstances it is impossible for me to conjecture, but it is very different from that which was before his mind in that case, and I cannot feel that there is any judgment of his which ought to influence my decision upon the present occasion."Id. at 85. Page 378 U. S. 63The court then concluded that, under the circumstances, it could not"distinguish the case in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law."Id. at 87. This decision, not King of the Two Sicilies, represents the settled "English rule" regarding self-incrimination under foreign law. See Heriz v. Riera, 11 Sim. 318, 59 Eng.Rep. 896.III. THE RECENT SUPREME COURT CASESIn 1896, in Brown v. Walker, 161 U. S. 591, this Court for the first time sustained the constitutionality of a federal immunity statute. Appellant in that case argued, inter alia, that:"while the witness is granted immunity from prosecution by the Federal government, he does not obtain such immunity against prosecution in the state courts."Id. at 161 U. S. 606.The Court construed the applicable statute, however, to prevent prosecutions either in state or federal courts. [Footnote 8] Page 378 U. S. 64Shortly thereafter, the Court decided Jack v. Kansas, 199 U. S. 372, in which the state court had held plaintiff in error in contempt for his refusal to answer certain questions on the ground that they would subject him to possible incrimination under federal law. In rejecting plaintiff's claim, this Court said that the Fifth Amendment "has no application in a proceeding like this," and hence "the sole question in the case" is whether"the denial of his claim of right to refuse to answer the questions was in violation of the Fourteenth Page 378 U. S. 65 Amendment to the Constitution. . . ."Id. at 199 U. S. 380. The Court stated that it did"not believe that in such case there is any real danger of a Federal prosecution, or that such evidence would be availed of by the government for such purpose."Id. at 199 U. S. 382. Then, without citing any authority, the Court added the following cryptic dictum: "We think the legal immunity is in regard to a prosecution in the same jurisdiction, and when that is fully given, it is enough." Ibid.That this dictum related solely to the "legal immunity" under the Due Process Clause of the Fourteenth Amendment is apparent from the fact that it was regarded, five weeks later in Ballmann v. Fagin, 200 U. S. 186, as wholly inapplicable to cases decided under the Self-Incrimination Clause of the Fifth Amendment. [Footnote 9] Ballmann had been held in contempt of a federal court for refusing to answer certain questions before a federal grand jury. He claimed that his answers might expose him "to the criminal law of the state in which the grand jury was sitting." Id. at 200 U. S. 195. Justice Holmes, writing for a Court which included the author of Jack v. Kansas, supra, squarely held that,"[a]ccording to United States v. Saline Bank, 1 Pet. 100, he was exonerated from disclosures which would have exposed him to the penalties of the state law. See Jack v. Kansas, 199 U. S. 372, decided this term."200 U.S. at 200 U. S. 195.A few months after Ballmann, the Court decided Hale v. Henkel, 201 U. S. 43. Appellant had been held in contempt of a federal court for refusing to answer certain questions and produce certain documents. His refusal was based in part on the argument that the federal immunity statute did not protect him from state prosecution. The Government argued, on the authority of Brown v. Walker, supra, that the statute did protect him Page 378 U. S. 66 from state prosecution. The Government assumed that it was settled that a valid federal immunity statute would have to protect against state prosecution. It never suggested, therefore, that immunity from federal prosecution was all that was required. Appellant similarly assumed, without argument, that the Constitution required immunity from state conviction as a condition of requiring incriminating testimony in a federal court. Thus, the critical constitutional issue -- whether the Fifth Amendment protects a federal witness from incriminating himself under state law -- was not briefed or argued in Hale v. Henkel. Nor was its resolution necessary to the decision of the case, for the Court could have decided the relevant point on the authority of Brown v. Walker, supra, which had held that a similar federal immunity statute protected against state prosecution. Nevertheless, the Court went on to say:"The question has been fully considered in England, and the conclusion reached [by the courts of that country] that the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty. Queen v. Boyes, 1 Best & S. 311; King of the Two Sicilies v. Willcox, 7 State Trials (N.S.) 1049, 1068; State v. March, 1 Jones (N.Car.) 526; State v. Thomas, 98 N.C. 599, 4 S.E. 518. . . .""The case of United States v. Saline Bank, 1 Pet. 100, is not in conflict with this. That was a bill for discovery, filed by the United States against the cashier of the Saline Bank, in the district court of the Virginia district, who pleaded that the emission of certain unlawful bills took place within the state of Virginia, by the law whereof penalties were inflicted for such emissions. It was held that defendants were not bound to answer and subject them[selves] to those penalties. It is sufficient to say that the prosecution was under a state law which imposed Page 378 U. S. 67 the penalty, and that the Federal court was simply administering the state law, and no question arose as to a prosecution under another jurisdiction."201 U.S. at 201 U. S. 69.This dictum, subsequently relied on in United States v. Murdock, supra, was not well founded.The settled English rule was exactly the opposite of that stated by the Court. The most recent authoritative announcement of the English rule had been that made in 1867 in United States of America v. McRae, supra, where the Court of Chancery Appeals held that where there is a real danger of prosecution in a foreign country, the case could not be distinguished"in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law."Supra at 378 U. S. 63. The dictum from King of the Two Sicilies cited by the Court in Hale v. Henkel had been rejected in McRae. Moreover, the two factors relied on by the English court in King of the Two Sicilies were wholly inapplicable to federal-state problems in this country. The first -- "The impossibility of knowing, as matter of law, to what cases the [danger of incrimination] may extend . . . ," supra at 378 U. S. 60 -- has no force in our country, where the federal and state courts take judicial notice of each other's law. The second -- that,"in order to make the disclosure dangerous to the party who objects, it is essential that he should first quit the protection of our laws, and wilfully go within the jurisdiction of the laws he has violated,"supra at 378 U. S. 60-61 -- is equally inapplicable in our country, where the witness is generally within "the jurisdiction" of the State under whose law he claims danger of incrimination, and where, if he is not, the State may demand his extradition. The second case relied on in Hale v. Henkel, supra -- The Queen v. Boyes, supra -- was irrelevant to the issue there presented. The Queen v. Boyes did not involve Page 378 U. S. 68 different jurisdictions or systems of law. It merely held that the danger of prosecution "must be real and appreciable . . . , not a danger of an imaginary and unsubstantial character. . . ." It in no way suggested that the danger of prosecution under foreign law could be ignored if it was "real and appreciable." [Footnote 10]Thus, the authorities relied on by the Court in Hale v. Henkel provided no support for the conclusion that, under the Fifth Amendment, "the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty." Nor was its attempt to distinguish Chief Justice Marshall's opinion in United States v. Saline Bank of Virginia, supra, more successful. The Court's reading of Saline Bank suggests that the state, rather than the federal, privilege against self-incrimination applies to federal courts when they are administering state substantive law. The most reasonable Page 378 U. S. 69 reading of that case, however, and the one which was plainly accepted by Justice Holmes in Ballmann v. Fagin, supra, is that the privilege against self-incrimination precludes a federal court from requiring an answer to a question which might incriminate the witness under state law. [Footnote 11] This reading is especially compelling in light of the English antecedents of the Saline Bank case. See East India Co. v. Campbell, discussed supra at 378 U. S. 58; and Brownsword v. Edwards, discussed supra at 378 U. S. 58-59.The weakness of the Hale v. Henkel dictum was immediately recognized both by lower federal courts [Footnote 12] and by this Court itself. In Vajtauer v. Commissioner of Immigration, 273 U. S. 103, decided in 1927 by a unanimous Page 378 U. S. 70 Court, appellant refused to answer certain questions put to him in a deportation proceeding on the ground that they "might have tended to incriminate him under the Illinois Syndicalism Law. . . ." Id. at 273 U. S. 112. Instead of deciding the issue on the authority of the Hale v. Henkel dictum, the Court held that the privilege had been waived. The Court then said:"This conclusion makes it unnecessary for us to consider the extent to which the Fifth Amendment guarantees immunity from self-incrimination under state statutes, or whether this case is to be controlled by Hale v. Henkel, 201 U. S. 43; Brown v. Walker, 161 U. S. 591, 161 U. S. 608. Compare 26 U. S. Saline Bank, 1 Pet. 100; Ballmann v. Fagin, 200 U. S. 186, 200 U. S. 195,."273 U.S. at 273 U. S. 113. In a subsequent case, decided in 1933, this Court said that the question -- whether "one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law" -- was "specifically reserved in Vajtauer v. Comm'r of Immigration," and was not "definitely settled" until 1931. United States v. Murdock, 290 U. S. 389, 290 U. S. 396.In 1931, the Court decided United States v. Murdock, 284 U. S. 141, the case principally relied on by respondent here. Appellee had been indicted for failing to supply certain information to federal revenue agents. He claimed that his refusal had been justified because it rested on the fear of federal and state incrimination. The Government argued that the record supported only a claim of state, not federal, incrimination, and that the Fifth Amendment does not protect against a claim of state incrimination. Appellee did not respond to the latter argument, but instead rested his entire case on the claim that his refusals had in each instance been based on federal as well as state incrimination. In support of Page 378 U. S. 71 its constitutional argument, the Government cited the same two English cases erroneously relied on in the Hale v. Henkel dictum -- King of the Two Sicilies v. Willcox, supra, which had been overruled, and The Queen v. Boyes, supra, which was wholly inapposite. An examination of the briefs and summary of argument indicates that neither the Government nor the appellee informed the Court that King of the Two Sicilies had been overruled by United States of America v. McRae, supra. [Footnote 13]This Court decided that appellee's refusal to answer rested solely on a fear of state prosecution, and then concluded, in one brief paragraph, that such a fear did not justify a refusal to answer questions put by federal officers.The Court gave three reasons for this conclusion. The first was that:"Investigations for federal purposes may not be prevented by matters depending upon state law. Constitution, art. 6, cl. 2."284 U.S. at 284 U. S. 149.This argument, however, begs the critical question. No one would suggest that state law could prevent a proper federal investigation; the Court had already held that the Federal Government could, under the Supremacy Clause, grant immunity from state prosecution, and that, accordingly, state law could not prevent a proper federal investigation. The critical issue was whether the Federal Government, without granting immunity from state prosecution, could compel testimony which would incriminate under state law. The Court's first "reason" was not responsive to this issue.The second reason given by the Court was that:"The English rule of evidence against compulsory self-incrimination, on which historically that contained Page 378 U. S. 72 in the Fifth Amendment rests, does not protect witnesses against disclosing offenses in violation of the laws of another country. King of the Two Sicilies v. Willcox, 7 St.Tr.(N.S.) 1050, 1068; Queen v. Boyes, 1 B. & S. 311, 330."284 U.S. at 284 U. S. 149.As has been demonstrated, the cases cited were in one instance overruled and in the other inapposite, and the English rule was the opposite from that stated in this Court's opinion: the rule did "protect witnesses against disclosing offenses in violation of the laws of another country." United States of America v. McRae, supra.The third reason given by the Court in Murdock was that:"This court has held that immunity against state prosecution is not essential to the validity of federal statutes declaring that a witness shall not be excused from giving evidence on the ground that it will incriminate him, and also that the lack of state power to give witnesses protection against federal prosecution does not defeat a state immunity statute. The principle established is that full and complete immunity against prosecution by the government compelling the witness to answer is equivalent to the protection furnished by the rule against compulsory self-incrimination. Counselman v. Hitchcock, 142 U. S. 547; Brown v. Walker, 161 U. S. 591, 161 U. S. 606; Jack v. Kansas, 199 U. S. 372, 199 U. S. 381. Hale v. Henkel, 201 U. S. 43, 201 U. S. 68."284 U.S. at 284 U. S. 149. This argument -- that the rule in question had already been "established" by the past decisions of the Court -- is not accurate. The first case cited by the Court -- Counselman v. Hitchcock -- said nothing about the problem of incrimination under the law of another sovereign. The second case -- Brown v. Walker -- merely held that the Page 378 U. S. 73 federal immunity statute there involved did protect against state prosecution. The third case -- Jack v. Kansas -- held that the Due Process Clause of the Fourteenth Amendment did not prevent a State from compelling an answer to a question which presented no "real danger of a Federal prosecution." 199 U.S. at 199 U. S. 382. The final case -- Hale v. Henkel -- contained dictum in support of the rule announced which was without real authority and which had been questioned by a unanimous Court in Vajtauer v. Commissioner of Immigration, supra. Moreover, the Court subsequently said, in no uncertain terms, that the rule announced in Murdock had not been previously "established" by the decisions of the Court. When Murdock appealed his subsequent conviction on the ground, inter alia, that an instruction on willfulness should have been given, the Court affirmed the Court of Appeals' reversal of his conviction and said that:"Not until this court pronounced judgment in United States v. Murdock, 284 U. S. 141, had it been definitely settled that one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law. The question was involved, but not decided, in Ballmann v. Fagin, 200 U. S. 186, 200 U. S. 195, and specifically reserved in Vajtauer v. Comm'r of Immigration, 273 U. S. 103, 273 U. S. 113."United States v. Murdock, 290 U. S. 389, 290 U. S. 396.Thus, neither the reasoning nor the authority relied on by the Court in United States v. Murdock, 284 U. S. 141, supports its conclusion that the Fifth Amendment permits the Federal Government to compel answers to questions which might incriminate under state law.In 1944, the Court, in Feldman v. United States, 322 U. S. 487, was confronted with the situation where evidence compelled by a State under a grant of state immunity was "availed of by the [Federal] Government" and Page 378 U. S. 74 introduced in a federal prosecution. Jack v. Kansas, 199 U.S. at 199 U. S. 382. This was the situation which the Court had earlier said it did "not believe" would occur. Ibid. Nevertheless, the Court, in a 4-to-3 decision, upheld this practice, but did so on the authority of a principle which is no longer accepted by this Court. The Feldman reasoning was essentially as follows:"[T]he Fourth and Fifth Amendments, intertwined as they are, [express] supplementing phases of the same constitutional purpose. . . ."322 U.S. 322 U. S. 489-490."[O]ne of the settled principles of our Constitution has been that these Amendments protect only against invasion of civil liberties by the [Federal] Government whose conduct they alone limit."Id. at 322 U. S. 490."And so, while evidence secured through unreasonable search and seizure by federal officials is inadmissible in a federal prosecution, Weeks v. United States, supra . . . , incriminating documents so secured by state officials without participation by federal officials but turned over for their use are admissible in a federal prosecution. Burdeau v. McDowell, 256 U. S. 465."322 U.S. at 322 U. S. 492.The Court concluded, therefore, by analogy to the then extant search and seizure rule, that evidence compelled by a state grant of immunity could be used by the Federal Government. But the legal foundation upon which that 4-to-3 decision rested no longer stands. Evidence illegally seized by state officials may not now be received in federal courts. In Elkins v. United States, 364 U. S. 206, the Court held, over the dissent of the writer of the Feldman decision, that"evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's Page 378 U. S. 75 timely objection in a federal criminal trial."364 U.S. at 364 U. S. 223. Thus, since the fundamental assumption underlying Feldman is no longer valid, the constitutional question there decided must now be regarded as an open one.The relevant cases decided by this Court since Feldman fall into two categories. Those involving a federal immunity statute -- exemplified by Adams v. Maryland, 347 U. S. 179 -- in which the Court suggested that the Fifth Amendment bars use by the States of evidence obtained by the Federal Government under the threat of contempt. And those involving a state immunity statute -- exemplified by Knapp v. Schweitzer, 357 U. S. 371 -- where the Court, applying a rule today rejected, held the Fifth Amendment inapplicable to the States. [Footnote 14]In Adams v. Maryland, supra, petitioner had testified before a United States Senate Committee investigating crime, and his testimony had later been used to convict him of a state crime. A federal statute at that time provided that no testimony given by a witness in congressional inquiries "shall be used as evidence in any criminal proceeding against him in any court. . . ." 62 Stat. 833. The State questioned the application of the statute to petitioner's testimony and the constitutionality of the statute if construed to apply to state courts. The Court, in an opinion joined by seven members, made the following significant statement:"a witness does not need any statute to protect him from the use of self-incriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that without a statute."347 U.S. at 347 U. S. 181. [Footnote 15] This statement suggests Page 378 U. S. 76 that any testimony elicited under threat of contempt by a government to whom the constitutional privilege against self-incrimination is applicable (at the time of that decision, it was deemed applicable only to the Federal Government) may not constitutionally be admitted into evidence against him in any criminal trial conducted by a government to whom the privilege is also applicable. This statement, read in light of today's decision in Malloy v. Hogan, 378 U. S. 1, draws into question the continuing authority of the statements to the contrary in United States v. Murdock, 284 U. S. 141, and Feldman v. United States, supra. [Footnote 16]Knapp v. Schweitzer, 357 U. S. 371, involved a state contempt conviction for a witness' refusal to answer questions, under a grant of state immunity, on the ground that his answers might subject him to prosecution under federal law. Petitioner claimed that"the Fifth Amendment gives him the privilege, which he can assert against either a State or the National Government, against giving testimony that might tend to implicate him in a violation"of federal law. Id. at 257 U. S. 374. The Court, applying Page 378 U. S. 77 the rule then in existence, denied petitioner's claim and declared that:"It is plain that the [Fifth Amendment] can no more be thought of as restricting action by the States than as restricting the conduct of private citizens. The sole -- although deeply valuable -- purpose of the Fifth Amendment privilege against self-incrimination is the security of the individual against the exertion of the power of the Federal Government to compel incriminating testimony with a view to enabling that same Government to convict a man out of his own mouth."Id. at 357 U. S. 380. The Court has today rejected that rule, and with it, all the earlier cases resting on that rule.The foregoing makes it clear that there is no continuing legal vitality to, or historical justification for, the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction.IV. CONCLUSIONSIn light of the history, policies and purposes of the privilege against self-incrimination, we now accept as correct the construction given the privilege by the English courts [Footnote 17] and by Chief Justice Marshall and Justice Holmes. See United States v. Saline Bank of Virginia, supra; Ballmann v. Fagin, supra. We reject -- as unsupported by history or policy -- the deviation from that construction only recently adopted by this Court in United States v. Murdock, supra, and Feldman v. United States, supra. We hold that the constitutional privilege Page 378 U. S. 78 against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.We must now decide what effect this holding has on existing state immunity legislation. In Counselman v. Hitchcock, 142 U. S. 547, this Court considered a federal statute which provided that no"evidence obtained from a party or witness by means of a judicial proceeding . . . shall be given in evidence, or in any manner used against him . . . in any court of the United States. . . ."Id. at 142 U. S. 560. Notwithstanding this statute, appellant, claiming his privilege against self-incrimination, refused to answer certain questions before a federal grand jury. The Court said"that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one at least unless it is so broad as to have the same extent in scope and effect."Id. at 142 U. S. 585. Applying this principle to the facts of that case, the Court upheld appellant's refusal to answer on the ground that the statute:"could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding in such court. . . ."Id. at 142 U. S. 564, that it:"could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted. . . ."ibid., and that it:"affords no protection against that use of compelled testimony which consists in gaining therefrom a Page 378 U. S. 79 knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party."Id. at 142 U. S. 586.Applying the holding of that case to our holdings today that the privilege against self-incrimination protects a state witness against federal prosecution, supra at 378 U. S. 77-78, and that "the same standards must determine whether [a witness'] silence in either a federal or state proceeding is justified," Malloy v. Hogan, ante at 378 U. S. 11, we hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that, in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits. [Footnote 18] This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.It follows that petitioners here may now be compelled to answer the questions propounded to them. At the time they refused to answer, however, petitioners had a reasonable fear, based on this Court's decision in Feldman v. United States, supra, that the federal authorities might use the answers against them in connection with a federal Page 378 U. S. 80 prosecution. We have now overruled Feldman and held that the Federal Government may make no such use of the answers. Fairness dictates that petitioners should now be afforded an opportunity, in light of this development, to answer the questions. Cf. Raley v. Ohio, 360 U. S. 423. Accordingly, the judgment of the New Jersey courts ordering petitioners to answer the questions may remain undisturbed. But the judgment of contempt is vacated and the cause remanded to the New Jersey Supreme Court for proceedings not inconsistent with this opinion.It is so ordered | U.S. Supreme CourtMurphy v. Waterfront Comm'n, 378 U.S. 52 (1964)Murphy v. Waterfront CommissionNo. 138Argued March 5, 1964Decided June 15, 1964378 U.S. 52SyllabusAlthough petitioners were granted immunity from prosecution under state laws, they refused to answer questions at a hearing conducted by the respondent on the ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not extend. They were held in civil and criminal contempt of court. The State Supreme Court reversed the criminal conviction on procedural grounds, but affirmed the civil contempt judgment, holding that a State may constitutionally compel a witness to give testimony which might be used against him in a federal prosecution.Held: One jurisdiction in our federal system may not, absent an immunity provision, compel a witness to give testimony which might incriminate him under the laws of another jurisdiction.(a) A state witness granted immunity from prosecution under state law may not be compelled to give testimony which may incriminate him under federal law unless such testimony and its fruits cannot be used in connection with a federal prosecution against him, and such use of compelled testimony or its fruits, as distinguished from independent evidence, by the Federal Government must be proscribed. Feldman v. United States, 322 U. S. 487, overruled. Pp. 378 U. S. 79-80.(b) The State may thus obtain information requisite for effective law enforcement and the witness and the Federal Government are left in the same position as if the witness claimed his privilege in the absence of a state grant of immunity. P. 378 U. S. 79.(c) With the removal of the fear of federal prosecution, the petitioners may be compelled to answer. Pp. 378 U. S. 79-80.39 N.J. 436, 189 A.2d 36, judgment vacated in part, affirmed in part, and remanded. Page 378 U. S. 53 |
342 | 1992_91-7358 | which undermines the States' interest in finality and infringes upon their sovereignty over criminal matters; is at odds with habeas' purpose of affording relief only to those grievously wronged; imposes significant "social costs," including the expenditure of additional time and resources by all of the parties, the erosion of memory and the dispersion of witnesses, and the frustration of society's interest in the prompt administration of justice; and results in retrials that take place much later than those following reversal on direct appeal. This imbalance of costs and benefits counsels in favor of application of the less onerous Kotteakos standard on collateral review, under which claimants are entitled to relief for trial error only if they can establish that "actual prejudice" resulted. See United States v. Lane, 474 U. S. 438, 449. Because the Kotteakos standard is grounded in the federal harmless-error rule (28 U. S. C. § 2111), federal courts may turn to an existing body of case law and, thus, are unlikely to be confused in applying it. pp. 633-638.2. It is clear that the Doyle error at Brecht's trial did not "substantially influence" the jury's verdict within the meaning of Kotteakos, since the record, considered as a whole, demonstrates that the State's references to Brecht's post-Miranda silence were infrequent and were, in effect, merely cumulative of the extensive and permissible references to his pre-Miranda silence; that the evidence of his guilt was, if not overwhelming, certainly weighty; and that circumstantial evidence also pointed to his guilt. Thus, Brecht is not entitled to habeas relief. Pp.638-639.944 F.2d 1363, affirmed.REHNQUIST, C. J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 639. WHITE, J., filed a dissenting opinion, in which BLACKMUN, J., joined, and in which SOUTER, J., joined except for the footnote and Part III, post, p. 644. BLACKMUN, post, p. 650, O'CONNOR, post, p. 650, and SOUTER, JJ., post, p. 657, filed dissenting opinions.Allen E. Shoen berger, by appointment of the Court, 505 U. S. 1202, argued the cause and filed briefs for petitioner.Sally L. Wellman, Assistant Attorney General of Wisconsin, argued the cause for respondent. With her on the brief was James E. Doyle, Attorney General.Attorney General Barr argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Starr, Assistant Attorney General622Mueller, Deputy Solicitor General Roberts, Ronald J. Mann, and Vicki S. Marani. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In Chapman v. California, 386 U. S. 18, 24 (1967), we held that the standard for determining whether a conviction must be set aside because of federal constitutional error is whether the error "was harmless beyond a reasonable doubt." In this case we must decide whether the Chapman harmless-error standard applies in determining whether the*Steven R. Shapiro, John A. Powell, Leon Friedman, and Larry W Yackle filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Dane R. Gillette, Deputy Attorney General, and Mark L. Krotoski, Special Assistant Attorney General, James H. Evans, Attorney General of Alabama, Charles E. Cole, Attorney General of Alaska, Winston Bryant, Attorney General of Arkansas, Gale A. Norton, Attorney General of Colorado, Richard N. Palmer, Chief State's Attorney of Connecticut, Larry EchoHawk, Attorney General of Idaho, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Richard P. Ieyoub, Attorney General of Louisiana, Frank J. Kelley, Attorney General of Michigan, Michael C. Moore, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Lee Fisher, Attorney General of Ohio, Ernest D. Preate, Jr., Attorney General of Pennsylvania, T. Travis Medlock, Attorney General of South Carolina, Mark Barnett, Attorney General of South Dakota, Dan Morales, Attorney General of Texas, Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Kenneth O. Eikenberry, Attorney General of Washington, Mario J. Palumbo, Attorney General of West Virginia, and Joseph B. Meyer, Attorney General of Wyoming; for the County of Wayne, Michigan, by John D. O'Hair and Timothy A. Baughman; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.623prosecution's use for impeachment purposes of petitioner's post-Miranda1 silence, in violation of due process under Doyle v. Ohio, 426 U. S. 610 (1976), entitles petitioner to habeas corpus relief. We hold that it does not. Instead, the standard for determining whether habeas relief must be granted is whether the Doyle error "had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos v. United States, 328 U. S. 750, 776 (1946). The Kotteakos harmless-error standard is better tailored to the nature and purpose of collateral review than the Chapman standard, and application of a less onerous harmless-error standard on habeas promotes the considerations underlying our habeas jurisprudence. Applying this standard, we conclude that petitioner is not entitled to habeas relief.Petitioner Todd A. Brecht was serving time in a Georgia prison for felony theft when his sister and her husband, Molly and Roger Hartman, paid the restitution for petitioner's crime and assumed temporary custody of him. The Hartmans brought petitioner home with them to Alma, Wisconsin, where he was to reside with them before entering a halfway house. This caused some tension in the Hartman household because Roger Hartman, a local district attorney, disapproved of petitioner's heavy drinking habits and homosexual orientation, not to mention his previous criminal exploits. To make the best of the situation, though, the Hartmans told petitioner, on more than one occasion, that he was not to drink alcohol or engage in homosexual activities in their home. Just one week after his arrival, however, petitioner violated this house rule.While the Hartmans were away, petitioner broke into their liquor cabinet and began drinking. He then found a rifle in an upstairs room and began shooting cans in the backyard. When Roger Hartman returned home from work, petitioner shot him in the back and sped off in Mrs. Hartman's car.1 Miranda v. Arizona, 384 U. S. 436 (1966).624Hartman crawled to a neighbor's house to summon help. (The downstairs phone in the Hartmans' house was inoperable because petitioner had taken the receiver on the upstairs phone off the hook.) Help came, but Hartman's wound proved fatal. Meanwhile, petitioner had driven Mrs. Hartman's car into a ditch in a nearby town. When a police officer stopped to offer assistance, petitioner told him that his sister knew about his car mishap and had called a tow truck. Petitioner then hitched a ride to Winona, Minnesota, where he was stopped by police. At first he tried to conceal his identity, but he later identified himself and was arrested. When he was told that he was being held for the shooting, petitioner replied that "it was a big mistake" and asked to talk with "somebody that would understand [him]." App. 39, 78. Petitioner was returned to Wisconsin, and thereafter was given his Miranda warnings at an arraignment.Then petitioner was charged with first-degree murder.At trial in the Circuit Court for Buffalo County, he took the stand and admitted shooting Hartman, but claimed it was an accident. According to petitioner, when he saw Hartman pulling into the driveway on the evening of the shooting, he ran to replace the gun in the upstairs room where he had found it. But as he was running toward the stairs in the downstairs hallway, he tripped, causing the rifle to discharge the fatal shot. After the shooting, Hartman disappeared, so petitioner drove off in Mrs. Hartman's car to find him. Upon spotting Hartman at his neighbor's door, however, petitioner panicked and drove away.The State argued that petitioner's account was belied by the fact that he had failed to get help for Hartman, fled the Hartmans' home immediately after the shooting, and lied to the police officer who came upon him in the ditch about having called Mrs. Hartman. In addition, the State pointed out that petitioner had failed to mention anything about the shooting being an accident to the officer who found him in the ditch, the man who gave him a ride to Winona, or the625officers who eventually arrested him. Over the objections of defense counsel, the State also asked petitioner during cross-examination whether he had told anyone at any time before trial that the shooting was an accident, to which petitioner replied "no," and made several references to petitioner's pretrial silence during closing argument.2 Finally, the State offered extrinsic evidence tending to contradict petitioner's story, including the path the bullet traveled through Mr. Hartman's body (horizontal to slightly downward) and the location where the rifle was found after the shooting (outside), as well as evidence of motive (petitioner's hostility toward Mr. Hartman because of his disapproval of petitioner's sexual orientation).The jury returned a guilty verdict, and petitioner was sentenced to life imprisonment. The Wisconsin Court of2 The State's cross-examination of petitioner included the following exchange:"Q. In fact the first time you have ever told this story is when you testified here today was it not?"A. You mean the story of actually what happened? "Q. Yes."A. I knew what happened, I'm just telling it the way it happened, yes, I didn't have a chance to talk to anyone, I didn't want to call somebody from a phone and give up my rights, so I didn't want to talk about it, no sir." App. 22-23.Then on re-cross-examination, the State further inquired:"Q. Did you tell anyone about what had happened in Alma? "A. No I did not." Id., at 23.During closing argument, the State urged the jury to "remember that Mr. Brecht never volunteered until in this courtroom what happened in the Hartman residence .... " Id., at 30. It also made the following statement with regard to petitioner's pretrial silence: "He sits back here and sees all of our evidence go in and then he comes out with this crazy story .... " Id., at 31. Finally, during its closing rebuttal, the State said: "I know what I'd say [had I been in petitioner's shoes], I'd say, 'hold on, this was a mistake, this was an accident, let me tell you what happened,' but he didn't say that did he. No, he waited until he hears our story." Id., at 36.626Appeals set the conviction aside on the ground that the State's references to petitioner's post-Miranda silence, see n. 2, supra, violated due process under Doyle v. Ohio, 426 U. S. 610 (1976), and that this error was sufficiently "prejudicial" to require reversal. State v. Brecht, 138 Wis. 2d 158, 168-169, 405 N. W. 2d 718, 723 (1987). The Wisconsin Supreme Court reinstated the conviction. Although it agreed that the State's use of petitioner's post-Miranda silence was impermissible, the court determined that this error "'was harmless beyond a reasonable doubt.'" State v. Brecht, 143 Wis. 2d 297, 317, 421 N. W. 2d 96, 104 (1988) (quoting Chapman v. California, 386 U. S. 18, 24 (1967)). In finding the Doyle violation harmless, the court noted that the State's "improper references to Brecht's silence were infrequent," in that they "comprised less than two pages of a 900 page transcript, or a few minutes in a four day trial in which twenty-five witnesses testified," and that the State's evidence of guilt was compelling. 143 Wis. 2d, at 317, 421 N. W. 2d, at 104.Petitioner then sought a writ of habeas corpus under 28 U. S. C. § 2254, reasserting his Doyle claim. The District Court agreed that the State's use of petitioner's postMiranda silence violated Doyle, but disagreed with the Wisconsin Supreme Court that this error was harmless beyond a reasonable doubt, and set aside the conviction. 759 F. Supp. 500 (WD Wis. 1991). The District Court based its harmless-error determination on its view that the State's evidence of guilt was not "overwhelming," and that the State's references to petitioner's post-Miranda silence, though "not extensive," were "crucial" because petitioner's defense turned on his credibility. Id., at 508. The Court of Appeals for the Seventh Circuit reversed. It, too, concluded that the State's references to petitioner's post-Miranda silence violated Doyle, but it disagreed with both the standard that the District Court had applied in conducting its harmless-error627inquiry and the result it reached. 944 F.2d 1363, 1368, 1375-1376 (1991).The Court of Appeals held that the Chapman harmlesserror standard does not apply in reviewing Doyle error on federal habeas. Instead, because of the "prophylactic" nature of the Doyle rule, 944 F. 2d, at 1370, as well as the costs attendant to reversing state convictions on collateral review, id., at 1373, the Court of Appeals held that the standard for determining whether petitioner was entitled to habeas relief was whether the Doyle violation" 'had substantial and injurious effect or influence in determining the jury's verdict,'" 944 F. 2d, at 1375 (quoting Kotteakos v. United States, 328 U. S., at 776). Applying this standard, the Court of Appeals concluded that petitioner was not entitled to relief because, "given the many more, and entirely proper, references to [petitioner's] silence preceding arraignment," he could not contend with a "straight face" that the State's use of his postMiranda silence had a "substantial and injurious effect" on the jury's verdict. 944 F. 2d, at 1376.We granted certiorari to resolve a conflict between Courts of Appeals on the question whether the Chapman harmlesserror standard applies on collateral review of Doyle violations, 504 U. S. 972 (1992),3 and now affirm.We are the sixth court to pass on the question whether the State's use for impeachment purposes of petitioner's postMiranda silence requires reversal of his murder conviction. Petitioner urges us to even the count, and decide matters in his favor once and for all. He argues that the Chapman harmless-error standard applies with equal force on collateral review of Doyle error. According to petitioner, the need to prevent state courts from relaxing their standards on direct review of Doyle claims, and the confusion which would ensue were we to adopt the Kotteakos harmless-error standard on3 Cf. Bass v. Nix, 909 F.2d 297 (CAS 1990) (The Chapman harmlesserror standard governs in reviewing Doyle violations on collateral review).628collateral review, require application of the Chapman standard here. Before considering these arguments, however, we must first characterize the nature of Doyle error itself.In Doyle v. Ohio, 426 U. S., at 619, we held that "the use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment." This rule "rests on 'the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at triaL'" Wainwright v. Greenfield, 474 U. S. 284, 291 (1986) (quoting South Dakota v. Neville, 459 U. S. 553, 565 (1983)). The "implicit assurance" upon which we have relied in our Doyle line of cases is the right-to-remain-silent component of Miranda. Thus, the Constitution does not prohibit the use for impeachment purposes of a defendant's silence prior to arrest, Jenkins v. Anderson, 447 U. S. 231, 239 (1980), or after arrest if no Miranda warnings are given, Fletcher v. Weir, 455 U. S. 603, 606-607 (1982) (per curiam). Such silence is probative and does not rest on any implied assurance by law enforcement authorities that it will carry no penalty. See 447 U. S., at 239.This case illustrates the point well. The first time petitioner claimed that the shooting was an accident was when he took the stand at trial. It was entirely proper-and probative-for the State to impeach his testimony by pointing out that petitioner had failed to tell anyone before the time he received his Miranda warnings at his arraignment about the shooting being an accident. Indeed, if the shooting was an accident, petitioner had every reason-including to clear his name and preserve evidence supporting his version of the events-to offer his account immediately following the shooting. On the other hand, the State's references to petitioner's silence after that point in time, or more generally to petitioner's failure to come forward with his version of629events at any time before trial, see n. 2, supra, crossed the Doyle line. For it is conceivable that, once petitioner had been given his Miranda warnings, he decided to stand on his right to remain silent because he believed his silence would not be used against him at trial.The Court of Appeals characterized Doyle as "a prophylactic rule." 944 F. 2d, at 1370. It reasoned that, since the need for Doyle stems from the implicit assurance that flows from Miranda warnings, and "the warnings required by Miranda are not themselves part of the Constitution," "Doyle is ... a prophylactic rule designed to protect another prophylactic rule from erosion or misuse." Ibid. But Doyle was not simply a further extension of the Miranda prophylactic rule. Rather, as we have discussed, it is rooted in fundamental fairness and due process concerns. However real these concerns, Doyle does not "'overprotec[tJ''' them. Duckworth v. Eagan, 492 U. S. 195, 209 (1989) (O'CONNOR, J., concurring). Under the rationale of Doyle, due process is violated whenever the prosecution uses for impeachment purposes a defendant's post-Miranda silence. Doyle thus does not bear the hallmarks of a prophylactic rule.Instead, we think Doyle error fits squarely into the category of constitutional violations which we have characterized as "'trial error.'" See Arizona v. Fulminante, 499 U. S. 279, 307 (1991). Trial error "occur[s] during the presentation of the case to the jury," and is amenable to harmlesserror analysis because it "may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the tria!]." Id., at 307-308. At the other end of the spectrum of constitutional errors lie "structural defects in the constitution of the trial mechanism, which defy analysis by 'harmless-error' standards." Id., at 309. The existence of such defects-deprivation of the right to counsel,4 for example-requires automatic reversal of the4 Gideon v. Wainwright, 372 U. S. 335 (1963).630conviction because they infect the entire trial process. See id., at 309-310. Since our landmark decision in Chapman v. California, 386 U. S. 18 (1967), we have applied the harmless-beyond-a-reasonable-doubt standard in reviewing claims of constitutional error of the trial type.In Chapman, we considered whether the prosecution's reference to the defendants' failure to testify at trial, in violation of the Fifth Amendment privilege against selfincrimination,5 required reversal of their convictions. We rejected the argument that the Constitution requires a blanket rule of automatic reversal in the case of constitutional error, and concluded instead that "there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless." Id., at 22. After examining existing harmless-error rules, including the federal rule (28 U. S. C. § 2111), we held that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." 386 U. S., at 24. The State bears the burden of proving that an error passes muster under this standard.Chapman reached this Court on direct review, as have most of the cases in which we have applied its harmlesserror standard. Although we have applied the Chapman standard in a handful of federal habeas cases, see, e. g., Yates v. Evatt, 500 U. S. 391 (1991); Rose v. Clark, 478 U. S. 570 (1986); Milton v. Wainwright, 407 U. S. 371 (1972); Anderson v. Nelson, 390 U. S. 523 (1968) (per curiam), we have yet squarely to address its applicability on collateral review.65 Griffin v. California, 380 U. S. 609 (1965).6 In Greer v. Miller, 483 U. S. 756 (1987), we granted certiorari to consider the same question presented here but did not reach this question because we concluded that no Doyle error had occurred in that case. See 483 U. S., at 761, n. 3, 765. But see id., at 768 (STEVENS, J., concurring in judgment) ("I believe the question presented in the certiorari petition-631Petitioner contends that we are bound by these habeas cases, by way of stare decisis, from holding that the Kotteakos harmless-error standard applies on habeas review of Doy le error. But since we have never squarely addressed the issue, and have at most assumed the applicability of the Chapman standard on habeas, we are free to address the issue on the merits. See Edelman v. Jordan, 415 U. S. 651, 670-671 (1974).The federal habeas corpus statute is silent on this point.It permits federal courts to entertain a habeas petition on behalf of a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States," 28 U. S. C. § 2254(a), and directs simply that the court "dispose of the matter as law and justice require," § 2243. The statute says nothing about the standard for harmless-error review in habeas cases. Respondent urges us to fill this gap with the Kotteakos standard, under which an error requires reversal only if it "had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos v. United States, 328 U. S., at 776. This standard is grounded in the federal harmless-error statute. 28 U. S. C. § 2111 ("On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties").7 On its face § 2111 might seem to address the situ-whether a federal court should apply a different standard in reviewing Doyle errors in a habeas corpus action-should be answered in the affirmative") (emphasis in original).7In Kotteakos, we construed §2111's statutory predecessor, 28 U. S. C. §391 (1925-1926 ed.). Section 391 provided: "On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." In formulating §391's harmless-error standard, we focused on the phrase "affect the substantial rights of the parties," and held632ation at hand, but to date we have limited its application to claims of nonconstitutional error in federal criminal cases. See, e. g., United States v. Lane, 474 U. S. 438 (1986).Petitioner asserts that Congress' failure to enact various proposals since Chapman was decided that would have limited the availability of habeas relief amounts to legislative disapproval of application of a less stringent harmless-error standard on collateral review of constitutional error. Only one of these proposals merits discussion here. In 1972, a bill was proposed that would have amended 28 U. S. C. § 2254 to require habeas petitioners to show that "'a different result would probably have obtained if such constitutional violation had not occurred.'" 118 Congo Rec. 24936 (1972) (quoting S. 3833, 92d Cong., 2d Sess. (1972)). In response, the Attorney General suggested that the above provision be modified to make habeas relief available only where the petitioner "'suffered a substantial deprivation of his constitutional rights at his trial.'" 118 Congo Rec. 24939 (1972) (quoting letter from Richard G. Kleindienst, Attorney General, to Emanuel Celler, Chairman of the House Committee on the Judiciary (June 21, 1972)). This language of course parallels the federal harmless-error rule. But neither the Attorney General's suggestion nor the proposed bill itself was ever enacted into law.As a general matter, we are "reluctant to draw inferences from Congress' failure to act." Schneidewind v. ANR Pipeline Co., 485 U. S. 293, 306 (1988) (citing American Trucking Assns., Inc. v. Atchison, T. & S. F. R. Co., 387 U. S. 397,that the test was whether the error "had substantial and injurious effect or influence in determining the jury's verdict." 328 U. S., at 776. Although Congress tinkered with the language of § 391 when it enacted § 2111 in its place in 1949, Congress left untouched the phrase "affect the substantial rights of the parties." Thus, the enactment of §2111 did not alter the basis for the harmless-error standard announced in Kotteakos. If anything, Congress' deletion of the word "technical," makes § 2111 more amenable to harmless-error review of constitutional violations. Cf. United States v. Hasting, 461 U. S. 499, 509-510, n. 7 (1983).633416-418 (1967)); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381, n. 11 (1969)). We find no reason to depart from this rule here. In the absence of any express statutory guidance from Congress, it remains for this Court to determine what harmless-error standard applies on collateral review of petitioner's Doyle claim. We have filled the gaps of the habeas corpus statute with respect to other matters, see, e. g., McCleskey v. Zant, 499 U. S. 467, 487 (1991); Wainwright v. Sykes, 433 U. S. 72, 81 (1977); Sanders v. United States, 373 U. S. 1, 15 (1963); Townsend v. Sain, 372 U. S. 293, 312-313 (1963), and find it necessary to do so here. As always, in defining the scope of the writ, we look first to the considerations underlying our habeas jurisprudence, and then determine whether the proposed rule would advance or inhibit these considerations by weighing the marginal costs and benefits of its application on collateral review.The principle that collateral review is different from direct review resounds throughout our habeas jurisprudence. See, e. g., Wright v. West, 505 U. S. 277, 292-293 (1992) (opinion of THOMAS, J.); Teague v. Lane, 489 U. S. 288, 306 (1989) (opinion of O'CONNOR, J.); Pennsylvania v. Finley, 481 U. S. 551, 556557 (1987); Mackey v. United States, 401 U. S. 667, 682 (1971) (Harlan, J., concurring in judgments in part and dissenting in part). Direct review is the principal avenue for challenging a conviction. "When the process of direct reviewwhich, if a federal question is involved, includes the right to petition this Court for a writ of certiorari-comes to an end, a presumption of finality and legality attaches to the conviction and sentence. The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials." Barefoot v. Estelle, 463 U. S. 880, 887 (1983).In keeping with this distinction, the writ of habeas corpus has historically been regarded as an extraordinary remedy, "a bulwark against convictions that violate 'fundamental fair-634ness.'" Engle v. Isaac, 456 U. S. 107, 126 (1982) (quoting Wainwright v. Sykes, supra, at 97 (STEVENS, J., concurring)). "Those few who are ultimately successful [in obtaining habeas relief] are persons whom society has grievously wronged and for whom belated liberation is little enough compensation." Fay v. Noia, 372 U. S. 391, 440-441 (1963). See also Kuhlmann v. Wilson, 477 U. S. 436, 447 (1986) (plurality opinion) ("The Court uniformly has been guided by the proposition that the writ should be available to afford relief to those 'persons whom society has grievously wronged' in light of modern concepts of justice") (quoting Fay v. Noia, supra, at 440-441); Jackson v. Virginia, 443 U. S. 307, 332, n. 5 (1979) (STEVENS, J., concurring in judgment) (Habeas corpus "is designed to guard against extreme malfunctions in the state criminal justice systems"). Accordingly, it hardly bears repeating that" 'an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.'" United States v. Frady, 456 U. S. 152, 165 (1982) (quoting United States v. Addonizio, 442 U. S. 178, 184 (1979)).8Recognizing the distinction between direct and collateral review, we have applied different standards on habeas than would be applied on direct review with respect to matters other than harmless-error analysis. Our recent retroactivity jurisprudence is a prime example. Although new rules always have retroactive application to criminal cases on direct review, Griffith v. Kentucky, 479 U. S. 314, 320-328 (1987), we have held that they seldom have retroactive application to criminal cases on federal habeas, Teague v. Lane, supra, at 305-310 (opinion of O'CONNOR, J.). Other examples abound throughout our habeas cases. See, e. g., Pennsylvania v.8 For instance, we have held that an error of law does not provide a basis for habeas relief under 28 U. S. C. § 2255 unless it constitutes "'a fundamental defect which inherently results in a complete miscarriage of justice.''' United States v. Timmreck, 441 U. S. 780, 783 (1979) (quoting Hill v. United States, 368 U. S. 424, 428 (1962)).635Finley, 481 U. S. 551, 555-556 (1987) (Although the Constitution guarantees the right to counsel on direct appeal, Douglas v. California, 372 U. S. 353, 355 (1963), there is no "right to counsel when mounting collateral attacks"); United States v. Frady, supra, at 162-169 (While the federal "plain error" rule applies in determining whether a defendant may raise a claim for the first time on direct appeal, the "cause and prejudice" standard applies in determining whether that same claim may be raised on habeas); Stone v. Powell, 428 U. S. 465, 489-496 (1976) (Claims under Mapp v. Ohio, 367 U. S. 643 (1961), are not cognizable on habeas as long as the state courts have provided a full and fair opportunity to litigate them at trial or on direct review).The reason most frequently advanced in our cases for distinguishing between direct and collateral review is the State's interest in the finality of convictions that have survived direct review within the state court system. See, e. g., Wright v. West, supra, at 293 (opinion of THOMAS, J.); McCleskey v. Zant, 499 U. S., at 491; Wainwright v. Sykes, 433 U. S., at 90. We have also spoken of comity and federalism. "The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Engle v. Isaac, supra, at 128. See also Coleman v. Thompson, 501 U. S. 722, 748 (1991); McCleskey, supra, at 491. Finally, we have recognized that "[l]iberal allowance of the writ ... degrades the prominence of the trial itself," Engle, supra, at 127, and at the same time encourages habeas petitioners to relitigate their claims on collateral review, see Rose v. Lundy, 455 U. S. 509, 547 (1982) (STEVENS, J., dissenting).In light of these considerations, we must decide whether the same harmless-error standard that the state courts ap-636plied on direct review of petitioner's Doyle claim also applies in this habeas proceeding. We are the sixth court to pass on the question whether the State's use for impeachment purposes of petitioner's post-Miranda silence in this case requires reversal of his conviction. Each court that has reviewed the record has disagreed with the court before it as to whether the State's Doyle error was "harmless." State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect on the trial process under Chapman, and state courts often occupy a superior vantage point from which to evaluate the effect of trial error. See Rushen v. Spain, 464 U. S. 114, 120 (1983) (per curiam). For these reasons, it scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review.Petitioner argues that application of the Chapman harmless-error standard on collateral review is necessary to deter state courts from relaxing their own guard in reviewing constitutional error and to discourage prosecutors from committing error in the first place. Absent affirmative evidence that state-court judges are ignoring their oath, we discount petitioner's argument that courts will respond to our ruling by violating their Article VI duty to uphold the Constitution. See Robb v. Connolly, 111 U. S. 624, 637 (1884). Federalism, comity, and the constitutional obligation of state and federal courts all counsel against any presumption that a decision of this Court will "deter" lower federal or state courts from fully performing their sworn duty. See Engle, supra, at 128; Schneckloth v. Bustamonte, 412 U. S. 218, 263-265 (1973) (Powell, J., concurring). In any event, we think the costs of applying the Chapman standard on federal habeas outweigh the additional deterrent effect, if any, that would be derived from its application on collateral review.637Overturning final and presumptively correct convictions on collateral review because the State cannot prove that an error is harmless under Chapman undermines the States' interest in finality and infringes upon their sovereignty over criminal matters. Moreover, granting habeas relief merely because there is a "'reasonable possibility'" that trial error contributed to the verdict, see Chapman v. California, 386 U. S., at 24 (quoting Fahy v. Connecticut, 375 U. S. 85, 86 (1963)), is at odds with the historic meaning of habeas corpus-to afford relief to those whom society has "grievously wronged." Retrying defendants whose convictions are set aside also imposes significant "social costs," including the expenditure of additional time and resources for all the parties involved, the "erosion of memory" and "dispersion of witnesses" that accompany the passage of time and make obtaining convictions on retrial more difficult, and the frustration of "society's interest in the prompt administration of justice." United States v. Mechanik, 475 U. S. 66, 72 (1986) (internal quotation marks omitted). And since there is no statute of limitations governing federal habeas, and the only laches recognized is that which affects the State's ability to defend against the claims raised on habeas, retrials following the grant of habeas relief ordinarily take place much later than do retrials following reversal on direct review.The imbalance of the costs and benefits of applying the Chapman harmless-error standard on collateral review counsels in favor of applying a less onerous standard on habeas review of constitutional error. The Kotteakos standard, we believe, fills the bill. The test under Kotteakos is whether the error "had substantial and injurious effect or influence in determining the jury's verdict." 328 U. S., at 776. Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in "actual prejudice." See United States v. Lane, 474 U. S. 438, 449 (1986). The Kotteakos638standard is thus better tailored to the nature and purpose of collateral review and more likely to promote the considerations underlying our recent habeas cases. Moreover, because the Kotteakos standard is grounded in the federal harmless-error rule, 28 U. S. C. § 2111, federal courts may turn to an existing body of case law in applying it. Therefore, contrary to the assertion of petitioner, application of the Kotteakos standard on collateral review is unlikely to confuse matters for habeas courts.For the foregoing reasons, then, we hold that the Kotteakos harmless-error standard applies in determining whether habeas relief must be granted because of constitutional error of the trial type.9 All that remains to be decided is whether petitioner is entitled to relief under this standard based on the State's Doy le error. Because the Court of Appeals applied the Kotteakos standard below, we proceed to this question ourselves rather than remand the case for a new harmless-error determination. Cf. Yates v. Evatt, 500 U. S. 391, 407 (1991). At trial, petitioner admitted shooting Hartman, but claimed it was an accident. The principal question before the jury, therefore, was whether the State met its burden in proving beyond a reasonable doubt that the shooting was intentional. Our inquiry here is whether, in light of the record as a whole, the State's improper use for impeachment purposes of petitioner's post-Miranda silence, see n. 2, supra, "had substantial and injurious effect or influence in determining the jury's verdict." We think it clear that it did not.9 Our holding does not foreclose the possibility that in an unusual case, a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not substantially influence the jury's verdict. Cf. Greer v. Miller, 483 U. S. 756, 769 (1987) (STEVENS, J., concurring in judgment). We, of course, are not presented with such a situation here.639The State's references to petitioner's post-Miranda silence were infrequent, comprising less than two pages of the 900-page trial transcript in this case. And in view of the State's extensive and permissible references to petitioner's pre-Miranda silence-i. e., his failure to mention anything about the shooting being an accident to the officer who found him in the ditch, the man who gave him a ride to Winona, or the officers who eventually arrested him-its references to petitioner's post-Miranda silence were, in effect, cumulative. Moreover, the State's evidence of guilt was, if not overwhelming, certainly weighty. The path of the bullet through Mr. Hartman's body was inconsistent with petitioner's testimony that the rifle had discharged as he was falling. The police officers who searched the Hartmans' home found nothing in the downstairs hallway that could have caused petitioner to trip. The rifle was found outside the house (where Hartman was shot), not inside where petitioner claimed it had accidently fired, and there was a live round rammed in the gun's chamber, suggesting that petitioner had tried to fire a second shot. Finally, other circumstantial evidence, including the motive proffered by the State, also pointed to petitioner's guilt.In light of the foregoing, we conclude that the Doyle error that occurred at petitioner's trial did not "substantial[ly] ... influence" the jury's verdict. Petitioner is therefore not entitled to habeas relief, and the judgment of the Court of Appeals isAffirmed | OCTOBER TERM, 1992SyllabusBRECHTv. ABRAHAMSON,SUPERINTENDEN~ DODGE CORRECTIONAL INSTITUTIONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 91-7358. Argued December 1, 1992-Decided April 21, 1993At his first-degree murder trial in Wisconsin state court, petitioner Brecht admitted shooting the victim, but claimed it was an accident. In order to impeach this testimony, the State, inter alia, made several references to the fact that, before he was given his Miranda warnings at an arraignment, Brecht failed to tell anyone with whom he came in contact that the shooting was accidental. The State also made several references to his post-Miranda-warning silence in this regard. The jury returned a guilty verdict and Brecht was sentenced to life in prison, but the State Court of Appeals set the conviction aside on the grounds that the State's references to his post-Miranda silence violated due process under Doyle v. Ohio, 426 U. S. 610, and this error was sufficiently "prejudicial" to require reversal. The State Supreme Court reinstated the conviction, holding that the error was "'harmless beyond a reasonable doubt'" under the standard set forth in Chapman v. California, 386 U. S. 18, 24. The Federal District Court disagreed and set aside the conviction on habeas review. In reversing, the Court of Appeals held that the proper standard of harmless-error review was that set forth in Kotteakos v. United States, 328 U. S. 750, 776, i. e., whether the Doyle violation" 'had substantial and injurious effect or influence in determining the jury's verdict.''' Applying this standard, the court concluded that Brecht was not entitled to relief.Held:1. The Kotteakos harmless-error standard, rather than the Chapman standard, applies in determining whether habeas relief must be granted because of unconstitutional "trial error" such as the Doyle error at issue. Pp. 627-638.(a) The State's references to Brecht's post-Miranda silence violated Doyle. The Doyle rule rests on the Miranda warnings' implicit assurance that a suspect's silence will not be used against him, and on the fundamental unfairness of using postwarning silence to impeach an explanation subsequently offered at trial. It is conceivable that, once Brecht was given his warnings, he decided to stand on his right to remain silent because he believed his silence would not be used against him at trial. The prosecution's references to his pre-Miranda silence620Syllabuswere, however, entirely proper. Such silence is probative and does not rest on any implied assurance by law enforcement authorities that it will carry no penalty. Pp. 627-629.(b) Doyle error fits squarely into the category of constitutional violations characterized by this Court as "trial error." See Arizona v. Fulminante, 499 U. S. 279, 307. Such error occurs during the presentation of the case to the jury, and is amenable to harmless-error analysis because it may be quantitatively assessed in the context of other evidence to determine its effect on the trial. See id., at 307-308. This Court has consistently applied the Chapman standard in reviewing claims of constitutional error of the trial type on direct review of state and federal criminal proceedings. Pp. 629-630.(c) It is for the Court to determine what harmless-error standard applies on collateral review of Brecht's Doyle claim. Although the Court has applied the Chapman standard in a handful of federal habeas cases, stare decisis does not preclude adoption of the Kotteakos standard here, since the decisions in question never squarely addressed, but merely assumed, Chapman's applicability on collateral review. Nor has Congress provided express guidance on the question. The federal habeas statute is silent as to the applicable standard, and while the federal harmless-error statute appears to echo the Kotteakos standard, it has been limited in its application to claims of nonconstitutional error in federal criminal cases. In line with the traditional rule, the Court finds no reason to draw inferences from Congress' failure to enact postChapman proposals that would have provided a less stringent harmlesserror standard on collateral review of constitutional error. Pp. 630-633.(d) The Kotteakos standard is better tailored to the nature and purpose of collateral review than the Chapman standard, and is more likely to promote the considerations underlying this Court's recent habeas jurisprudence. In recognition of the historical distinction between direct review as the principal way to challenge a conviction and collateral review as an extraordinary remedy whose role is secondary and limited, the Court has often applied different standards on habeas than on direct review. It scarcely seems logical to require federal habeas courts to engage in the same approach that Chapman requires of state courts on direct review, since the latter courts are fully qualified to identify constitutional error and are often better situated to evaluate its prejudicial effect on the trial process. Absent affirmative evidence that statecourt judges are ignoring their oath, Brecht's argument is unpersuasive that such courts will respond to the application of Kotteakos on federal habeas by violating their Article VI duty to uphold the Constitution. In any event, the additional deterrent effect, if any, of applying Chapman on federal habeas is outweighed by the costs of that application,621Full Text of Opinion |
343 | 1980_80-2078 | JUSTICE REHNQUIST delivered the opinion of the Court.The questions presented by this case touch fundamentally upon the manner in which our Republic is to be governed. Throughout the nearly two centuries of our Nation's existence under the Constitution, this subject has generated considerable debate. We have had the benefit of commentators such a John Jay, Alexander Hamilton, and James Madison writing in The Federalist Paper at the Nation's very inception, the benefit of astute foreign observers of our system such as Page 453 U. S. 660 Alexis de Tocqueville and James Bryce writing during the first century of the Nation's existence, and the benefit of many other treatises, as well as more than 400 volumes of reports of decisions of this Court. As these writings reveal, it is doubtless both futile and perhaps dangerous to find any epigrammatical explanation of how this country has been governed. Indeed, as Justice Jackson noted,"[a] judge . . . may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves."Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S. 634 (1952) (concurring opinion).Our decision today will not dramatically alter this situation, for the Framers "did not make the judiciary the overseer of our government." Id. at 343 U. S. 594 (Frankfurter, J., concurring). We are confined to a resolution of the dispute presented to us. That dispute involves various Executive Orders and regulations by which the President nullified attachments and liens on Iranian assets in the United States, directed that these assets be transferred to Iran, and suspended claims against Iran that may be presented to an International Claims Tribunal. This action was taken in an effort to comply with an Executive Agreement between the United States and Iran. We granted certiorari before judgment in this case, and set an expedited briefing and argument schedule, because lower courts had reached conflicting conclusions on the validity of the President's actions and, as the Solicitor General informed us, unless the Government acted by July 19, 1981, Iran could consider the United States to be in breach of the Executive Agreement.But before turning to the facts and law which we believe determine the result in this case, we stress that the expeditious treatment of the issues involved by all of the courts which have considered the President's actions makes us acutely aware of the necessity to rest decision on the narrowest possible ground capable of deciding the case. Ashwander v. TVA, Page 453 U. S. 661 297 U. S. 288, 297 U. S. 347 (1936) (Brandeis, J., concurring). This does not mean that reasoned analysis may give way to judicial fiat. It does mean that the statement of Justice Jackson -- that we decide difficult cases presented to us by virtue of our commissions, not our competence -- is especially true here. We attempt to lay down no general "guidelines" covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case.Perhaps it is because it is so difficult to reconcile the foregoing definition of Art. III judicial power with the broad range of vitally important day-to-day questions regularly decided by Congress or the Executive, without either challenge or interference by the Judiciary, that the decisions of the Court in this area have been rare, episodic, and afford little precedential value for subsequent cases. The tensions present in any exercise of executive power under the tripartite system of Federal Government established by the Constitution have been reflected in opinions by Members of this Court more than once. The Court stated in United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 299 U. S. 319-320 (1936):"[W] e are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations -- a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution."And yet, 16 years later, Justice Jackson, in his concurring opinion in Youngstown, supra, which both parties agree brings together as much combination of analysis and common sense as there is in this area, focused not on the "plenary and exclusive Page 453 U. S. 662 power of the President," but rather responded to a claim of virtually unlimited powers for the Executive by noting:"The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image."343 U.S. at 343 U. S. 641.As we now turn to the factual and legal issues in this case, we freely confess that we are obviously deciding only one more episode in the never-ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal, and the Constitution under which we all live and which no one disputes embodies some sort of system of checks and balances.IOn November 4, 1979, the American Embassy in Tehran was seized and our diplomatic personnel were captured and held hostage. In response to that crisis, President Carter, acting pursuant to the International Emergency Economic Powers Act, 91 Stat. 1626, 50 U.S.C. §§ 1701-1706 (1976 ed., Supp. III) (hereinafter IEEPA), declared a national emergency on November 14, 1979, [Footnote 1] and blocked the removal or transfer of"all property and interests in property of the Government of Iran, its instrumentalities and controlled entities and the Central Bank of Iran which are or become subject to Page 453 U. S. 663 the jurisdiction of the United States. . . ."Exec.Order No. 12170, 3 CFR 457 (1980), note following 50 U.S.C. 1701 (1976 ed. Supp. III). [Footnote 2] President Carter authorized the Secretary of the Treasury to promulgate regulations carrying out the blocking order. On November 15, 1979, the Treasury Department's Office of Foreign Assets Control issued a regulation providing that,"[u]nless licensed or authorized . . . any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which, on or since [November 14, 1979,] there existed an interest of Iran."31 CFR § 535.203(e) (1980). The regulations also made clear that any licenses or authorizations granted could be "amended, modified, or revoked at any time." § 535.805. [Footnote 3]On November 26, 1979, the President granted a general license authorizing certain judicial proceedings against Iran, but which did not allow the "entry of any judgment or of any decree or order of similar or analogous effect. . . ." § 535.504(a). On December 19, 1979, a clarifying regulation was issued stating that "the general authorization for judicial proceedings contained in § 535.504(a) includes prejudgment attachment." § 535.418.On December 19, 1979, petitioner Dames & Moore filed suit in the United States District Court for the Central District of California against the Government of Iran, the Atomic Page 453 U. S. 664 Energy Organization of Iran, and a number of Iranian banks. In its complaint, petitioner alleged that its wholly owned subsidiary, Dames & Moore International, S.R.L., was a party to a written contract with the Atomic Energy Organization, and that the subsidiary's entire interest in the contract had been assigned to petitioner. Under the contract, the subsidiary was to conduct site studies for a proposed nuclear power plant in Iran. As provided in the terms of the contract, the Atomic Energy Organization terminated the agreement for its own convenience on June 30, 1979. Petitioner contended, however, that it was owed $3,436,694.30 plus interest for services performed under the contract prior to the date of termination. [Footnote 4] The District Court issued orders of attachment directed against property of the defendants, and the property of certain Iranian banks was then attached to secure any judgment that might be entered against them. On January 20, 1981, the Americans held hostage were released by Iran pursuant to an Agreement entered into the day before and embodied in two Declarations of the Democratic and Popular Republic of Algeria. Declaration of the Government of the Democratic and Popular Republic of Algeria (App. to Pet. for Cert. 21-29), and Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (id. at 335). The Agreement Page 453 U. S. 665 stated that"[i]t is the purpose of [the United States and Iran] . . . to terminate all litigation as between the Government of each party and the nationals of the other, and to bring about the settlement and termination of all such claims through binding arbitration."Id. at 21-22. In furtherance of this goal, the Agreement called for the establishment of an Iran-United States Claims Tribunal which would arbitrate any claims not settled within six months. Awards of the Claims Tribunal are to be "final and binding," and "enforceable . . . in the courts of any nation in accordance with its laws." Id. at 32. Under the Agreement, the United States is obligated"to terminate all legal proceedings in United States courts involving claims of United States persons and institutions against Iran and its state enterprises, to nullify all attachments and judgments obtained therein, to prohibit all further litigation based on such claims, and to bring about the termination of such claims through binding arbitration."Id. at 22. In addition, the United States must "act to bring about the transfer" by July 19, 1981, of all Iranian assets held in this country by American banks. Id. at 24-25. One billion dollars of these assets will be deposited in a security account in the Bank of England, to the account of the Algerian Central Bank, and used to satisfy awards rendered against Iran by the Claims Tribunal. Ibid.On January 19, 1981, President Carter issued a series of Executive Orders implementing the terms of the agreement. Exec.Orders Nos. 12276-12285, 46 Fed.Reg. 7913-7932. These Orders revoked all licenses permitting the exercise of "any right, power, or privilege" with regard to Iranian funds, securities, or deposits; "nullified" all non-Iranian interests in such assets acquired subsequent to the blocking order of November 14, 1979; and required those banks holding Iranian assets to transfer them "to the Federal Reserve Bank of New Page 453 U. S. 666 York, to be held or transferred as directed by the Secretary of the Treasury." Exec.Order No. 12279, 46 Fed.Reg. 7919.On February 24. 1081, President Reagan issued an Executive Order in which he "ratified" the January 19th Executive Orders. Exec.Order No. 12294, 46 Fed.Reg. 14111. Moreover, he "suspended" all "claims which may be presented to the . . . Tribunal," and provided that such claims "shall have no legal effect in any action now pending in any court of the United States." Ibid. The suspension of any particular claim terminates if the Claims Tribunal determines that it has no jurisdiction over that claim; claims are discharged for all purposes when the Claims Tribunal either awards some recovery and that amount is paid or determines that no recovery is due. Ibid.Meanwhile, on January 27, 1981, petitioner moved for summary judgment in the District Court against the Government of Iran and the Atomic Energy Organization, but not against the Iranian banks. The District Court granted petitioner's motion and awarded petitioner the amount claimed under the contract, plus interest. Thereafter, petitioner attempted to execute the judgment by obtaining writs of garnishment and execution in state court in the State of Washington, and a sheriff's sale of Iranian property in Washington was noticed to satisfy the judgment. However, by order of May 28, 1981, as amended by order of June 8, the District Court stayed execution of its judgment pending appeal by the Government of Iran and the Atomic Energy Organization. The District Court also ordered that all prejudgment attachments obtained against the Iranian defendants be vacated, and that further proceedings against the bank defendants be stayed in light of the Executive Orders discussed above. App. to Pet. for Cert. 106-107.On April 28, 1981, petitioner filed this action in the District Court for declaratory and injunctive relief against the United States and the Secretary of the Treasury, seeking to Page 453 U. S. 667 prevent enforcement of the Executive Orders and Treasury Department regulations implementing the Agreement with Iran. In its complaint, petitioner alleged that the actions of the President and the Secretary of the Treasury implementing the Agreement with Iran were beyond their statutory and constitutional powers, and, in any event, were unconstitutional to the extent they adversely affect petitioner's final judgment against the Government of Iran and the Atomic Energy Organization, its execution of that judgment in the State of Washington, its prejudgment attachments, and its ability to continue to litigate against the Iranian banks. Id. at 1-12. On May 28, 1981, the District Court denied petitioner's motion for a preliminary injunction and dismissed petitioner's complaint for failure to state a claim upon which relief could be granted. Id. at 106-107. Prior to the District Court's ruling, the United States Courts of Appeals for the First and the District of Columbia Circuits upheld the President's authority to issue the Executive Orders and regulations challenged by petitioner. See Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d 800 (CA1 1981); American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. 468, 657 F.2d 430 (1981).On June 3, 1981, petitioner filed a notice of appeal from the District Court's order, and the appeal was docketed in the United States Court of Appeals for the Ninth Circuit. On June 4, the Treasury Department amended its regulations to mandate "the transfer of bank deposits and certain other financial assets of Iran in the United States to the Federal Reserve Bank of New York by noon, June 19." App. to Pet. for Cert. 151-152. The District Court, however, entered an injunction pending appeal prohibiting the United States from requiring the transfer of Iranian property that is subject to "any writ of attachment, garnishment, judgment, levy, or other judicial lien" issued by any court in favor of petitioner. Id. at 168. Arguing that this is a case of "imperative public importance," petitioner then sought a writ of certiorari before Page 453 U. S. 668 judgment. Pet. for Cert. 10. See 28 U.S.C. § 2101 (e); this Court's Rule 18. Because the issues presented here are of great significance and demand prompt resolution, we granted the petition for the writ, adopted an expedited briefing schedule, and set the case for oral argument on June 24, 1981. 452 U.S. 932 (1981).IIThe parties and the lower courts, confronted with the instant questions, have all agreed that much relevant analysis is contained in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). Justice Black's opinion for the Court in that case, involving the validity of President Truman's effort to seize the country's steel mills in the wake of a nationwide strike, recognized that "[t]he President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Id. at 343 U. S. 585. Justice Jackson's concurring opinion elaborated in a general way the consequences of different types of interaction between the two democratic branches in assessing Presidential authority to act in any given case. When the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress. In such a case, the executive action"would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it."Id. at 343 U. S. 637. When the President acts in the absence of congressional authorization, he may enter "a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." Ibid. In such a case, the analysis becomes more complicated, and the validity of the President's action, at least so far as separation of powers principles are concerned, hinges on a consideration of all the circumstances which might shed light on the views of the Legislative Branch toward such action, including "congressional Page 453 U. S. 669 inertia, indifference or quiescence." Ibid. Finally, when the President acts in contravention of the will of Congress, "his power is at its lowest ebb," and the Court can sustain his actions "only by disabling the Congress from acting upon the subject." Id. at 343 U. S. 637-638.Although we have in the past found, and do today find, Justice Jackson's classification of executive actions into three general categories analytically useful, we should be mindful of Justice Holmes' admonition, quoted by Justice Frankfurter in Youngstown, supra, at 343 U. S. 597 (concurring opinion), that "[t]he great ordinances of the Constitution do not establish and divide fields of black and white." Springer v. Philippine Islands, 277 U. S. 189, 277 U. S. 209 (1928) (dissenting opinion). Justice Jackson himself recognized that his three categories represented "a somewhat over-simplified grouping," 343 U.S. at 343 U. S. 635, and it is doubtless the case that executive action in any particular instance falls not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail.IIIIn nullifying post-November 14, 1979, attachments and directing those persons holding blocked Iranian funds and securities to transfer them to the Federal Reserve Bank of New York for ultimate transfer to Iran, President Carter cited five sources of express or inherent power. The Government, however, has principally relied on § 203 of the IEEPA, 91 Stat. 1626, 50 U.S.C. § 1702(a)(1) (1976 ed., Supp. III), as authorization for these actions. Section 1702(a)(1) provides in part:"At the times and to the extent specified in section 1701 of this title, the President may, under such regulations Page 453 U. S. 670 as he may prescribe, by means of instructions, licenses, or otherwise -- ""(A) investigate, regulate, or prohibit -- ""(i) any transactions in foreign exchange,""(ii) transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof,""(iii) the importing or exporting of currency or securities, and""(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest;""by any person, or with respect to any property, subject to the jurisdiction of the United States."The Government contends that the acts of "nullifying" the attachments and ordering the "transfer" of the frozen assets are specifically authorized by the plain language of the above statute. The two Courts of Appeals that have considered the issue agreed with this contention. In Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, the Court of Appeals for the First Circuit explained:"The President relied on his IEEPA powers in November, 1979, when he 'blocked' all Iranian assets in this country, and again in January, 1981, when he 'nullified' interests acquired in blocked property, and ordered that property's transfer. The President's actions in this regard are in keeping with the language of IEEPA: initially he 'prevent[ed] and prohibit[ed]' 'transfers' of Iranian assets; later he 'direct[ed] and compel[led]' the Page 453 U. S. 671 'transfer' and 'withdrawal' of the assets, 'nullify[ing]' certain 'rights' and 'privileges' acquired in them.""Main argues that IEEPA does not supply the President with power to override judicial remedies, such as attachments and injunctions, or to extinguish 'interests' in foreign assets held by United States citizens. But we can find no such limitation in IEEPA's terms. The language of IEEPA is sweeping and unqualified. It provides broadly that the President may void or nullify the""exercising [by any person of] any right, power or privilege with respect to . . . any property in which any foreign country has any interest. . . .""50 U.S.C. § 1702(a)(1)(B)."651 F.2d at 806-807 (emphasis in original). In American Int'l Group, Inc. v. Islamic Republic of Iran, the Court of Appeals for the District of Columbia Circuit employed a similar rationale in sustaining President Carter's action:"The Presidential revocation of the license he issued permitting prejudgment restraints upon Iranian assets is an action that falls within the plain language of the IEEPA. In vacating the attachments, he acted to""nullify [and] void . . . any . . . exercising any right, power, or privilege with respect to . . . any property in which any foreign country . . . has any interest . . . by any person . . . subject to the jurisdiction of the United States."211 U.S.App.D.C. at 477, 657 F.2d at 439 (footnote omitted).Petitioner contends that we should ignore the plain language of this statute because an examination of its legislative history, as well as the history of § 5(b) of the Trading With the Enemy Act (hereinafter TWEA), 40 Stat. 411, as amended, 50 U.S.C.App. § 5(b) (1976 ed. and Supp. III), from which the pertinent language of § 1702 is directly drawn, Page 453 U. S. 672 reveals that the statute was not intended to give the President such extensive power over the assets of a foreign state during times of national emergency. According to petitioner, once the President instituted the November 14, 1979, blocking order, § 1702 authorized him "only to continue the freeze or to discontinue controls." Brief for Petitioner 32.We do not agree, and refuse to read out of § 1702 all meaning to the words "transfer," "compel," or "nullify." Nothing in the legislative history of either § 1702 or § 5(b)of the TWEA requires such a result. To the contrary, we think both the legislative history and cases interpreting the TWEA fully sustain such a result. To the contrary, we think both the legislative history and cases interpreting the TWEA fully sustain the broad authority of the Executive when acting under this congressional grant of power. See, e.g., Orvis v. Brownell 345 U. S. 183 (1953). [Footnote 5] Although Congress intended Page 453 U. S. 673 to limit the President's emergency power in peacetime, we do not think the changes brought about by the enactment of the IEEPA in any way affected the authority of the President to take the specific actions taken here. We likewise note that, by the time petitioner instituted this action, the President had already entered the freeze order. Petitioner proceeded against the blocked assets only after the Treasury Department had issued revocable licenses authorizing such proceedings and attachments. The Treasury Regulations provided that, "unless licensed," any attachment is null and void, 31 CFR § 535.203(e) (1980), and all licenses "may be amended, modified, or revoked at any time." § 535.805. As such, the attachments obtained by petitioner were specifically made subordinate to further actions which the President might take under the IEEPA. Petitioner was on notice of the contingent nature of its interest in the frozen assets.This Court has previously recognized that the congressional purpose in authorizing blocking orders is "to put control of foreign assets in the hands of the President. . . ." Propper v. Clark, 337 U. S. 472, 337 U. S. 493 (1949). Such orders permit the President to maintain the foreign assets at his disposal for use in negotiating the resolution of a declared national emergency. The frozen assets serve as a "bargaining chip" to be used by the President when dealing with a hostile country. Accordingly, it is difficult to accept petitioner's argument, because the practical effect of it is to allow individual claimants throughout the country to minimize or wholly eliminate this "bargaining chip" through attachments, garnishments, or similar encumbrances on property. Neither the purpose the Page 453 U. S. 674 statute was enacted to serve nor its plain language supports such a result. [Footnote 6]Because the President's action in nullifying the attachments and ordering the transfer of the assets was taken pursuant to specific congressional authorization, it is"supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it."Youngstown, 343 U.S. at 343 U. S. 637 (Jackson, J., concurring). Under the circumstances of this case, we cannot say that petitioner has sustained that heavy burden. A contrary ruling would mean that the Federal Government as a whole lacked the power exercised by the President, see id. at 343 U. S. 636-637, and that we are not prepared to say. Page 453 U. S. 675IVAlthough we have concluded that the IEEPA constitutes specific congressional authorization to the President to nullify the attachments and order the transfer of Iranian assets, there remains the question of the President's authority to suspend claims pending in American courts. Such claims have, of course, an existence apart from the attachments which accompanied them. In terminating these claims through Executive Order No. 12294, the President purported to act under authority of both the IEEPA and 22 U.S.C. § 1732, the so-called "Hostage Act." [Footnote 7] 46 Fed.Reg. 14111 (1981).We conclude that, although the IEEPA authorized the nullification of the attachments, it cannot be read to authorize the suspension of the claims. The claims of American citizens against Iran are not, in themselves, transactions involving Iranian property or efforts to exercise any rights with respect to such property. An in personam lawsuit, although it might eventually be reduced to judgment and that judgment might be executed upon, is an effort to establish liability and fix damages, and does not focus on any particular property within the jurisdiction. The terms of the IEEPA therefore do not authorize the President to suspend claims in American courts. This is the view of all the courts which have considered the question. Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d at 809-814; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. at 481, n. 15, 657 F.2d at 443, n. 15; The Marschalk Co. v. Iran National Airlines Corp., 518 F. Supp. 69, 79 (SDNY Page 453 U. S. 676 1981); Electronic Data Systems Corp. v. Social Security Organization of Iran, 508 F. Supp. 1350, 131 (ND Tex.1981). The Hostage Act, passed in 1868, provides:"Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress."Rev.Stat. § 2001, 22 U.S.C. § 1732.We are reluctant to conclude that this provision constitutes specific authorization to the President to suspend claims in American courts. Although the broad language of the Hostage Act suggests it may cover this case, there are several difficulties with such a view. The legislative history indicates that the Act was passed in response to a situation unlike the recent Iranian crisis. Congress in 1868 was concerned with the activity of certain countries refusing to recognize the citizenship of naturalized Americans traveling abroad and repatriating such citizens against their will. See, e.g., Cong.Globe, 40th Cong., 2d Sess., 4331 (1868) (Sen. Fessenden); id. at 4354 (Sen. Conness); see also 22 U.S.C. § 1731. These countries were not interested in returning the citizens in exchange for any sort of ransom. This also explains the reference in the Act to imprisonment "in violation of the rights of American citizenship." Although the Iranian hostage-taking violated international law and common decency, Page 453 U. S. 677 the hostages were not seized out of any refusal to recognize their American citizenship -- they were seized precisely because of their American citizenship. The legislative history is also somewhat ambiguous on the question whether Congress contemplated Presidential action such as that involved here, or rather simply reprisals directed against the offending foreign country and its citizens. See, e.g., Cong.Globe, 40th Cong., 2d Sess., 4205 (1868); American Int'l Group, Inc. v. Islamic Republic of Iran, supra, at 490-491, 657 F.2d at 452-453 (opinion of Mikva, J.).Concluding that neither the IEEPA nor the Hostage Act constitutes specific authorization of the President's action suspending claims, however, is not to say that these statutory provisions are entirely irrelevant to the question of the validity of the President's action. We think both statutes highly relevant in the looser sense of indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case. As noted in Part III, supra, at 453 U. S. 670-672, the IEEPA delegates broad authority to the President to act in times of national emergency with respect to property of a foreign country. The Hostage Act similarly indicates congressional willingness that the President have broad discretion when responding to the hostile acts of foreign sovereigns. As Senator Williams, draftsman of the language eventually enacted as the Hostage Act, put it:"If you propose any remedy at all, you must invest the Executive with some discretion, so that he may apply the remedy to a case as it may arise. As to England or France, he might adopt one policy to relieve a citizen imprisoned by either one of those countries; as to the Barbary powers, he might adopt another policy; as to the islands of the ocean, another. With different countries that have different systems of government, he might adopt different means."Cong.Globe, 40th Cong., 2d Sess., 4359 (1868). Page 453 U. S. 678 Proponents of the bill recognized that it placed a "loose discretion" in the President's hands, id. at 4238 (Sen. Stewart), but argued that "[s]omething must be intrusted to the Executive," and that "[t]he President ought to have the power to do what the exigencies of the case require to rescue [a] citizen from imprisonment." Id. at 4233, 4357 (Sen. Williams). An original version of the Act, which authorized the President to suspend trade with a foreign country and even arrest citizens of that country in the United States in retaliation, was rejected because"there may be a great variety of cases arising where other and different means would be equally effective, and where the end desired could be accomplished without resorting to such dangerous and violent measures."Id. at 4233 (Sen. Williams).Although we have declined to conclude that the IEEPA or the Hostage Act directly authorizes the President's suspension of claims for the reasons noted, we cannot ignore the general tenor of Congress' legislation in this area in trying to determine whether the President is acting alone, or at least with the acceptance of Congress. As we have noted, Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take, or every possible situation in which he might act. Such failure of Congress specifically to delegate authority does not, "especially . . . in the areas of foreign policy and national security," imply "congressional disapproval" of action taken by the Executive. Haig v. Agee, ante at 453 U. S. 291. On the contrary, the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to "invite" "measures on independent presidential responsibility," Youngstown, 343 U.S. at 343 U. S. 637 (Jackson, J., concurring). At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort Page 453 U. S. 679 engaged in by the President. It is to that history which we now turn.Not infrequently in affairs between nations, outstanding claims by nationals of one country against the government of another country are "sources of friction" between the two sovereigns. United States v. Pink, 315 U. S. 203, 315 U. S. 225 (1942). To resolve these difficulties, nations have often entered into agreements settling the claims of their respective nationals. As one treatise writer puts it, international agreements settling claims by nationals of one state against the government of another "are established international practice reflecting traditional international theory." L. Henkin, Foreign Affairs and the Constitution 262 (1972). Consistent with that principle, the United States has repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries. Though those settlements have sometimes been made by treaty, there has also been a longstanding practice of settling such claims by executive agreement, without the advice and consent of the Senate. [Footnote 8] Under such agreements, the President has agreed to renounce or extinguish claims of United States nationals against foreign governments in return for lump-sum payments or the establishment of arbitration procedures. To be sure, many of these settlements were encouraged by the United States claimants themselves, since a claimant's only hope of obtaining any payment at all might lie in having his Government negotiate a diplomatic settlement on his behalf. But it is also undisputed Page 453 U. S. 680 that the"United States has sometimes disposed of the claims of its citizens without their consent, or even without consultation with them, usually without exclusive regard for their interests, as distinguished from those of the nation as a whole."Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations Law of the United States § 213 (1965) (President "may waive or settle a claim against a foreign state . . . [even] without the consent of the [injured] national"). It is clear that the practice of settling claims continues today. Since 1952, the President has entered into at least 10 binding settlements with foreign nations, including an $80 million settlement with the People's Republic of China. [Footnote 9]Crucial to our decision today is the conclusion that Congress has implicitly approved the practice of claim settlement by executive agreement. This is best demonstrated by Congress' enactment of the International Claims Settlement Act of 1949, 64 Stat. 13, as amended, 22 U.S.C. § 1621 et seq. (1976 ed. and Supp. IV). The Act had two purposes: (1) to allocate to United States nationals funds received in the course of an executive claims settlement with Yugoslavia, and (2) to provide a procedure whereby funds resulting from future settlements could be distributed. To achieve these ends Congress created the International Claims Commission, now the Foreign Claims Settlement Commission, and gave it jurisdiction to make final and binding decisions with respect to claims by United States nationals against settlement funds. 22 U.S.C. § 1623(a). By creating a procedure to implement future settlement agreements, Congress placed its stamp of approval on such agreements. Indeed, the legislative history of the Act observed that the United States was seeking settlements Page 453 U. S. 681 with countries other than Yugoslavia, and that the bill contemplated settlements of a similar nature in the future. H.R.Rep. No. 770, 81st Cong., 1st Sess., 4, 8 (1949).Over the years, Congress has frequently amended the International Claims Settlement Act to provide for particular problems arising out of settlement agreements, thus demonstrating Congress' continuing acceptance of the President's claim settlement authority. With respect to the Executive Agreement with the People's Republic of China, for example, Congress established an allocation formula for distribution of the funds received pursuant to the Agreement. 22 U.S.C. § 1627(f) (1976 ed., Supp. IV). As with legislation involving other executive agreements, Congress did not question the fact of the settlement or the power of the President to have concluded it. In 1976, Congress authorized the Foreign Claims Settlement Commission to adjudicate the merits of claims by United States nationals against East Germany, prior to any settlement with East Germany, so that the Executive would "be in a better position to negotiate an adequate settlement . . . of these claims." S.Rep. No. 94-1188, p. 2 (1976); 22 U.S.C. § 1644b. Similarly, Congress recently amended the International Claims Settlement Act to facilitate the settlement of claims against Vietnam. 22 U.S.C. §§ 1645, 1645a(5) (1976 ed., Supp. IV). The House Report stated that the purpose of the legislation was to establish an official inventory of losses of private United States property in Vietnam so that recovery could be achieved "through future direct Government-to-Government negotiation of private property claims." H.R.Rep. No. 96-915, pp. 2-3 (1980). Finally, the legislative history of the IEEPA further reveals that Congress has accepted the authority of the Executive to enter into settlement agreements. Though the IEEPA was enacted to provide for some limitation on the President's emergency powers, Congress stressed that"[n]othing in this act is intended . . . to interfere with the authority Page 453 U. S. 682 of the President to [block assets], or to impede the settlement of claims of U.S. citizens against foreign countries."S.Rep. No. 9566, p. 6 (1977); 50 U.S.C. § 1706(a)(1) (1976 ed., Supp. III). [Footnote 10]In addition to congressional acquiescence in the President's power to settle claims, prior cases of this Court have also recognized that the President does have some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate. In United States v. Pink, 315 U. S. 203 (1942), for example, the Court upheld the validity of the Litvinov Assignment, which was part of an Executive Agreement whereby the Soviet Union assigned to the United States amounts owed to it by American nationals so that outstanding claims of other American nationals could Page 453 U. S. 683 be paid. The Court explained that the resolution of such claims was integrally connected with normalizing United States' relations with a foreign state:"Power to remove such obstacles to full recognition as settlement of claims of our nationals . . . certainly is a modest implied power of the President. . . . No such obstacle can be placed in the way of rehabilitation of relations between this country and another nation unless the historic conception of the powers and responsibilities . . . is to be drastically revised."Id. at 315 U. S. 229-230. Similarly, Judge Learned Hand recognized:"The constitutional power of the President extends to the settlement of mutual claims between a foreign government and the United States, at least when it is an incident to the recognition of that government; and it would be unreasonable to circumscribe it to such controversies. The continued mutual amity between the nation and other powers again and again depends upon a satisfactory compromise of mutual claims; the necessary power to make such compromises has existed from the earliest times and been exercised by the foreign offices of all civilized nations."Ozanic v. United States, 188 F.2d 228, 231 (CA2 1951).Petitioner raises two arguments in opposition to the proposition that Congress has acquiesced in this longstanding practice of claims settlement by executive agreement. First, it suggests that all pre-1952 settlement claims, and corresponding court cases such as Pink, should be discounted because of the evolution of the doctrine of sovereign immunity. Petitioner observes that, prior to 1952, the United States adhered to the doctrine of absolute sovereign immunity, so that, absent action by the Executive, there simply would be no remedy for a United States national against a foreign government. When the United States in 1952 adopted a more restrictive Page 453 U. S. 684 notion of sovereign immunity, by means of the so-called "Tate" letter, it is petitioner's view that United States nationals no longer needed executive aid to settle claims, and that, as a result, the President's authority to settle such claims in some sense "disappeared." Though petitioner's argument is not wholly without merit, it is refuted by the fact that, since 1952, there have been at least 10 claims settlements by executive agreement. Thus, even if the pre-1952 cases should be disregarded, congressional acquiescence in settlement agreements since that time supports the President's power to act here.Petitioner next asserts that Congress divested the President of the authority to settle claims when it enacted the Foreign Sovereign Immunities Act of 1976 (hereinafter FSIA), 28 U.S.C. §§ 1330, 1602 et seq. The FSIA granted personal and subject matter jurisdiction in the federal district courts over commercial suits brought by claimants against those foreign states which have waived immunity. 28 U.S.C. 1330. Prior to the enactment of the FSIA, a foreign government's immunity to suit was determined by the Executive Branch on a case-by-case basis. According to petitioner, the principal purpose of the FSIA was to depoliticize these commercial lawsuits by taking them out of the arena of foreign affairs -- where the Executive Branch is subject to the pressures of foreign states seeking to avoid liability through a grant of immunity -- and by placing them within the exclusive jurisdiction of the courts. Petitioner thus insists that the President, by suspending its claims, has circumscribed the jurisdiction of the United States courts in violation of Art. III of the Constitution.We disagree. In the first place, we do not believe that the President has attempted to divest the federal courts of jurisdiction. Executive Order No. 12294 purports only to "suspend" the claims, not divest the federal court of "jurisdiction." As we read the Executive Order, those claims not within the jurisdiction of the Claims Tribunal will "revive" Page 453 U. S. 685 and become judicially enforceable in United States courts. This case, in short, illustrates the difference between modifying federal court jurisdiction and directing the courts to apply a different rule of law. See United States v. Schooner Peggy, 1 Cranch 103 (1801). The President has exercised the power, acquiesced in by Congress, to settle claims and, as such, has simply effected a change in the substantive law governing the lawsuit. Indeed, the very example of sovereign immunity belies petitioner's argument. No one would suggest that a determination of sovereign immunity divests the federal courts of "jurisdiction." Yet petitioner's argument, if accepted, would have required courts prior to the enactment of the FSIA to reject as an encroachment on their jurisdiction the President's determination of a foreign state's sovereign immunity.Petitioner also reads the FSIA much too broadly. The principal purpose of the FSIA was to codify contemporary concepts concerning the scope of sovereign immunity and withdraw from the President the authority to make binding determinations of the sovereign immunity to be accorded foreign states. See Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d at 813-814; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. at 482, 67 F.2d at 444. The FSIA was thus designed to remove one particular barrier to suit, namely sovereign immunity, and cannot be fairly read as prohibiting the President from settling claims of United States nationals against foreign governments. It is telling that the Congress which enacted the FSIA considered, but rejected, several proposals designed to limit the power of the President to enter into executive agreements, including claims settlement agreements. [Footnote 11] Page 453 U. S. 686 It is quite unlikely that the same Congress that rejected proposals to limit the President's authority to conclude executive agreements sought to accomplish that very purpose sub silentio through the FSIA. And, as noted above, just one year after enacting the FSIA, Congress enacted the IEEPA, where the legislative history stressed that nothing in the IEEPA was to impede the settlement of claims of United States citizens. It would be surprising for Congress to express this support for settlement agreements had it intended the FSIA to eliminate the President's authority to make such agreements.In light of all of the foregoing -- the inferences to be drawn from the character of the legislation Congress has enacted in the area, such as the IEEPA and the Hostage Act, and from the history of acquiescence in executive claims settlement -- we conclude that the President was authorized to suspend pending claims pursuant to Executive Order No. 12294. As Justice Frankfurter pointed out in Youngstown, 343 U.S. at 343 U. S. 610-611,"a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'Executive Power' vested in the President by § 1 of Art. II."Past practice does not, by itself, create power, but"long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent. . . ."United States v. Midwest Oil Co., 236 U. S. 459, 236 U. S. 474 (1915). See Haig v. Agee, ante at 453 U. S. 291-292. Such practice is present here, and such a presumption is also appropriate. In light of the fact that Congress may be considered to have consented to the President's action in suspending claims, we cannot say that action exceeded the President's powers.Our conclusion is buttressed by the fact that the means Page 453 U. S. 687 chosen by the President to settle the claims of American nationals provided an alternative forum, the Claims Tribunal which is capable of providing meaningful relief. The Solicitor General also suggests that the provision of the Claims Tribunal will actually enhance the opportunity for claimants to recover their claims, in that the Agreement removes a number of jurisdictional and procedural impediments faced by claimants in United States courts. Brief for Federal Respondents 13-14. Although being overly sanguine about the chances of United States claimants before the Claims Tribunal would require a degree of naivete which should not be demanded even of judges, the Solicitor General's point cannot be discounted. Moreover, it is important to remember that we have already held that the President has the statutory authority to nullify attachments and to transfer the assets out of the country. The President's power to do so does not depend on his provision of a forum whereby claimants can recover on those claims. The fact that the President has provided such a forum here means that the claimants are receiving something in return for the suspension of their claims, namely, access to an international tribunal before which they may well recover something on their claims. Because there does appear to be a real "settlement" here, this case is more easily analogized to the more traditional claim settlement cases of the past.Just as importantly, Congress has not disapproved of the action taken here. Though Congress has held hearings on the Iranian Agreement itself, [Footnote 12] Congress has not enacted legislation, or even passed a resolution, indicating its displeasure with the Agreement. Quite the contrary, the relevant Senate Page 453 U. S. 688 Committee has stated that the establishment of the Tribunal is "of vital importance to the United States." S.Rep. No. 97-71, p. 5 (1981). [Footnote 13] We are thus clearly not confronted with a situation in which Congress has in some way resisted the exercise of Presidential authority.Finally, we reemphasize the narrowness of our decision. We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities. As the Court of Appeals for the First Circuit stressed,"[t]he sheer magnitude of such a power, considered against the background of the diversity and complexity of modern international trade, cautions against any broader construction of authority than is necessary."Chas. T. Main Int'l, Inc. v. Khuzestan Water Power Authority, 651 F.2d at 814. But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims.VWe do not think it appropriate at the present time to address petitioner's contention that the suspension of claims, if authorized, would constitute a taking of property in violation of the Fifth Amendment to the United States Constitution in the absence of just compensation. [Footnote 14] Both petitioner and Page 453 U. S. 689 the Government concede that the question whether the suspension of the claims constitutes a taking is not ripe for review. Brief for Petitioner 34, n. 32; Brief for Federal Respondents 65. Accord, Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, supra, at 814-815; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. at 485. 657 F.2d at 447. However, this contention, and the possibility that the President's actions may effect a taking of petitioner's property, make ripe for adjudication the question whether petitioner will have a remedy at law in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491 (1976 ed., Supp. III), in such an event. That the fact and extent of the taking in this case is yet speculative is inconsequential, because "there must be, at the time of taking, reasonable, certain and adequate provision for obtaining compensation.'" Regional Rail Reorganization Act Cases, 419 U. S. 102, 419 U. S. 124-125 (1974), quoting Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, 135 U. S. 659 (1890); see also Cities Service Co. v. McGrath, 342 U. S. 330, 342 U. S. 335-336 (1952); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 438 U. S. 94, n. 39 (1978).It has been contended that the "treaty exception" to the jurisdiction of the Court of Claims, 28 U.S.C. § 1502, might preclude the Court of Claims from exercising jurisdiction over any takings claim the petitioner might bring. At oral argument, however, the Government conceded that § 1502 would not act as a bar to petitioner's action in the Court of Claims. Tr. of Oral Arg. 392, 47. We agree. See United States v. Weld, 127 U. S. 51 (1888); United States v. Old Settlers, 148 U. S. 427 (1893); Hughes Aircraft Co. v. United States, 209 Ct.Cl. 446, 534 F.2d 889 (1976). Accordingly, to the extent petitioner believes it has suffered an unconstitutional taking by the suspension of the claims, we see no jurisdictional Page 453 U. S. 690 obstacle to an appropriate action in the United States Court of Claims under the Tucker Act.The judgment of the District Court is accordingly affirmed, and the mandate shall issue forthwith.It is so ordered | U.S. Supreme CourtDames & Moore v. Regan, 453 U.S. 654 (1981)Dames & Moore v. ReganNo. 80-2078Argued June 24, 1981Decided July 2, 1981453 U.S. 654SyllabusIn response to the seizure of American personnel as hostages at the American Embassy in Tehran, Iran, President Carter, pursuant to the International Emergency Economic Powers Act (IEEPA), declared a national emergency on November 14, 1979, and blocked the removal or transfer of all property and interests in property of the Government of Iran which were subject to the jurisdiction of the United States. The Treasury Department then issued implementing regulations providing that,"[u]nless licensed or authorized . . . , any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which, on or since [November 14, 1979,] there existed an interest of Iran,"and that any licenses or authorizations granted could be "amended, modified, or revoked at any time." The President then granted a general license that authorized certain judicial proceedings, including prejudgment attachments, against Iran, but did not allow the entry of any judgment or decree. On December 19, 1979, petitioner filed suit in Federal District Court against the Government of Iran, the Atomic Energy Organization of Iran, and a number of Iranian banks, alleging that it was owed a certain amount of money for services performed under a contract with the Atomic Energy Organization. The District Court issued orders of attachment against the defendants' property, and property of certain Iranian banks was then attached to secure any judgment that might be entered against them. Subsequently, on January 19, 1981, the Americans held hostage were released by Iran pursuant to an agreement with the United States. Under this agreement, the United States was obligated to terminate all legal proceedings in United States courts involving claims of United States nationals against Iran, to nullify all attachments and judgments obtained therein, and to bring about the termination of such claims through binding arbitration in an Iran-United States Claims Tribunal. The President at the same time issued implementing Executive Orders revoking all licenses that permitted the exercise of "any right, power, or privilege" with regard to Iranian funds, nullifying all non-Iranian interests in such assets acquired after the blocking order of November Page 453 U. S. 655 14, 1979, and requiring banks holding Iranian assets to transfer them to the Federal Reserve Bank of New York to be held or transferred as directed by the Secretary of the Treasury. On February 24, 1981, President Reagan issued an Executive Order which ratified President Carter's Executive Orders and "suspended" all claims that may be presented to the Claims Tribunal, but which provided that the suspension of a claim terminates if the Claims Tribunal determines that it has no jurisdiction over the claim. Meanwhile, the District Court granted summary judgment for petitioner and awarded it the amount claimed under the contract plus interest, but stayed execution of the judgment pending appeal by the defendants, and ordered that all prejudgment attachments against the defendants be vacated and that further proceedings against the bank defendants be stayed. Petitioner then filed an action in Federal District Court against the United States and the Secretary of the Treasury, seeking to prevent enforcement of the various Executive Orders and regulations implementing the agreement with Iran. It was alleged that the actions of the President and the Secretary of the Treasury were beyond their statutory and constitutional powers, and, in any event, were unconstitutional to the extent they adversely affect petitioner's final judgment against Iran and the Atomic Energy Organization, its execution of that judgment, its prejudgment attachments, and its ability to continue to litigate against the Iranian banks. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted, but entered an injunction pending appeal to the Court of Appeals prohibiting the United States from requiring the transfer of Iranian property that is subject to any writ of attachment issued by any court in petitioner's favor. This Court then granted certiorari before judgment.Held:1. The President was authorized to nullify the attachments and order the transfer of Iranian assets by the provision of the IEEPA, 50 U.S.C. § 1702(a)(1)(B), which empowers the President to "compel," "nullify," or "prohibit" any "transfer" with respect to, or transactions involving, any property subject to the jurisdiction of the United States, in which any foreign country has any interest. Pp. 453 U. S. 669-674.(a) Nothing in the legislative history of either § 1702 or § 5(b) of the Trading With the Enemy Act (TWEA), from which § 1702 was directly drawn, requires reading out of § 1702 all meaning to the words "transfer," "compel," or "nullify," and limiting the President's authority in this case only to continuing the freeze, as petitioner claims. To the contrary, both the legislative history and cases interpreting the TWEA fully sustain the President's broad authority when acting under Page 453 U. S. 656 such congressional grant of power. And the changes brought about by the enactment of the IEEPA did not in any way affect the President's authority to take the specific action taken here. By the time petitioner brought the instant action, the President had already entered the freeze order, and petitioner proceeded against the blocked assets only after the Treasury Department had issued revocable licenses authorizing such proceedings and attachments. The attachments obtained by petitioner, being subject to revocation, were specifically made subordinate to further actions which the President might take under the IEEPA. Pp. 453 U. S. 671-673.(b) Blocking orders, such as the one here, permit the President to maintain foreign assets at his disposal for use in negotiating the resolution of a declared national emergency, and the frozen assets serve as a "bargaining chip" to be used by the President when dealing with a hostile country. To limit the President's authority, as petitioner urges, would mean that claimants could minimize or eliminate this "bargaining chip" through attachments or similar encumbrances. Pp. 453 U. S. 673-674.(c) Petitioner's interest in its attachments was conditional and revocable, and as such, the President's action nullifying the attachments and ordering the transfer of the assets did not effect a taking of property in violation of the Fifth Amendment absent just compensation. P. 453 U. S. 674, n. 6.(d) Because the President's action in nullifying the attachments and ordering the transfer of assets was taken pursuant to specific congressional authorization, it is"supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it."Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S. 637 (Jackson, J., concurring). Under the circumstances of this case, petitioner has not sustained that burden. P. 453 U. S. 674.2. On the basis of the inferences to be drawn from the character of the legislation, such as the IEEPA and the Hostage Act, which Congress has enacted in the area of the President's authority to deal with international crises, and from the history of congressional acquiescence in executive claims settlement, the President was authorized to suspend claims pursuant to the Executive Order in question here. Pp. 453 U. S. 675-688.(a) Although neither the IEEPA nor the Hostage Act constitutes specific authorization for the President's suspension of the claims, these statutes are highly relevant as an indication of congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case. Pp. 453 U. S. 675-679.(b) The United States has repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries. Page 453 U. S. 657 Although those settlements have sometimes been made by treaty, there has also been a longstanding practice of settling such claims by executive agreement without the advice and consent of the Senate, and this practice continues at the present time. Pp. 453 U. S. 679-680.(c) That Congress has implicitly approved the practice of claims settlement by executive agreement is best demonstrated by Congress' enactment of the International Claims Settlement Act of 1919, which created the International Claims Commission, now the Foreign Claims Settlement Commission, and gave it jurisdiction to make final and binding decisions with respect to claims by United States nationals against settlement funds. And the legislative history of the IEEPA further reveals that Congress has accepted the authority of the President to enter into settlement agreements. Pp. 453 U. S. 680-682.(d) In addition to congressional acquiescence in the President's power to settle claims, prior cases of this Court have also recognized that the President has some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate. See, e.g., United States v. Pink, 315 U. S. 203. Pp. 453 U. S. 682-683.(e) Petitioner's argument that all settlement claims prior to 1952, when the United States had adhered to the doctrine of absolute sovereign immunity should be discounted because of the evolution of sovereign immunity, is refuted by the fact that, since 1952, there have been at least 10 claim settlements by executive agreement. Thus, even if the pre-1952 cases should be disregarded, congressional acquiescence in settlement agreements since that time supports the President's power to act here. Pp. 453 U. S. 683-684.(f) By enacting the Foreign Sovereign Immunities Act of 1976 (FSIA), which granted personal and subject matter jurisdiction to federal district courts over commercial suits by claimants against foreign states that waived immunity, Congress did not divest the President of the authority to settle claims. The President, by suspending petitioner's claim, has not circumscribed the jurisdiction of the United States courts in violation of Art. III, but has simply effected a change in the substantive law governing the lawsuit. The FSIA was designed to remove one particular barrier to suit, namely, sovereign immunity, and cannot be read as prohibiting the President from settling claims of United States nationals against foreign governments. Pp. 453 U. S. 684-686.(g) Long continued executive practice, known to and acquiesced in by Congress, raises a presumption that the President's action has been taken pursuant to Congress' consent. Such practice is present here, and such a presumption is also appropriate. P. 453 U. S. 686.(h) The conclusion that the President's action in suspending petitioner's Page 453 U. S. 658 claim did not exceed his powers is buttressed by the fact the President has provided an alternative forum, the Claims Tribunal, to settle the claims of the American nationals. Moreover, Congress has not disapproved the action taken here. Pp. 453 U. S. 686-688.(i) While it is not concluded that the President has plenary power to settle claims, even against foreign governmental entities, nevertheless, where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between this country and another, and Congress has acquiesced in the President's action, it cannot be said that the President lacks the power to settle such claim. P. 453 U. S. 688.3. The possibility that the President's actions with respect to the suspension of the claims may effect a taking of petitioner's property in violation of the Fifth Amendment in the absence of just compensation makes ripe for adjudication the question whether petitioner will have a remedy at law in the Court of Claims. And there is no jurisdictional obstacle to an appropriate action in that court under the Tucker Act. Pp. 453 U. S. 688-690.Affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined; in all but n. 6 of which POWELL, J., joined; and in all but Part V of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part, post, p. 453 U. S. 690. POWELL, J., filed an opinion concurring in part and dissenting in part, post, p. 453 U. S. 690. Page 453 U. S. 659 |
344 | 1994_93-823 | JUSTICE THOMAS delivered the opinion of the Court.We took this case to decide whether States may tax interest income derived from repurchase agreements involving federal securities. If the income that taxpayers earn by participating in such agreements constitutes interest on federal securities, then the taxation violates 31 U. S. C. § 3124(a), which exempts interest on "obligations of the United States Government" from taxation by States. On the other hand, if that income constitutes interest on loans to a private party, the taxation is not prohibited by the statute. With respect to the repurchase agreements at issue in this case, we conclude that for purposes of § 3124(a), the interest earned by taxpayers is interest on loans to a private party, not interest on federal securities. Accordingly, we hold that § 3124(a) does not prohibit States from taxing such income.IRespondent is a Nebraska resident who owns shares in two mutual funds, the Trust for Short-Term U. S. Government Securities and the Trust for U. S. Treasury Obligations (Trusts). The Trusts earn a portion of their income by participating in "repurchase agreements" that involve debt securities issued by the United States Government and its agen-of Illinois, Pamela Carter of Indiana, Chris Gorman of Kentucky, Richard p. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Tom Udall of New Mexico, G. Oliver Koppell of New York, Heidi Heitkamp of North Dakota, Susan Brimer Loving of Oklahoma, Theodore R. Kulongoski of Oregon, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, James S. Gilmore III of Virginia, and James E. Doyle of Wisconsin; and for the Council of State Governments et al. by Richard Ruda and Lee Fennell.Briefs of amici curiae urging affirmance were filed for The Dreyfus Corporation by Jeffrey S. Sion; and for the Investment Company Institute by Albert G. Lauber, Jr., Paul Schott Stevens, and Catherine Heron.Thomas C. Baxter, Jr., filed a brief for the Federal Reserve Bank of New York as amicus curiae.126cies (federal securities). A typical repurchase agreement used by the Trusts, see App. 65-81, establishes a two-part transaction, commonly called a "repo," between a party who holds federal securities and seeks cash (Seller-Borrower) and a party who has available cash and seeks to earn interest on its idle funds (in this case, the Trusts). In part one of the repo, the Seller-Borrower "transfers" specified federal securities to the Trusts on the records of the Federal Reserve System's commercial book-entry system. Simultaneously, the Trusts transfer a specified amount of cash to the SellerBorrower's bank account.In part two of the transaction-which occurs at a later date fixed by agreement or, in the absence of any agreement, upon demand of either party-the Trusts "deliver" the federal securities back to the Seller-Borrower on the Federal Reserve's records, and the Seller-Borrower credits the Trusts' bank account in an amount equal to the sum of the original cash transfer plus "interest" at an agreed-upon rate. This interest rate bears no relation to the yield on the underlying federal securities-either when they were issued by the United States Government or when they later came into the hands of the Seller- Borrower-but is based instead on the current market rate paid on investments with maturities equal to the term of the repo, not to the original or current maturities of the underlying securities.1After deducting administrative costs, the Trusts distribute this interest income to respondent in proportion to his ownership of shares in the Trusts. The State of Nebraska generally taxes interest income, but it does not tax "interest or dividends received by the owner of obligations of the United1 A repurchase agreement is so called because the parties to the agreement identify part one of the transaction as a "sale" of federal securities from the Seller-Borrower to the Trusts and part two a "repurchase" of the securities by the Seller-Borrower from the Trusts. Because the accuracy of these labels is part of the dispute in this case, we use more neutral terms to describe the transaction.127States ... but exempt from state income taxes under the laws of the United States." Neb. Rev. Stat. § 77-2716(1)(a) (Supp. 1994). For purposes of Nebraska's income tax law, if interest would be exempt from tax in the hands of the Trusts, then respondent's proportionate share of such interest will be exempt. § 77-2716(1)(b).A decade ago petitioner considered whether the interest income derived from repurchase agreements involving federal securities and then distributed to respondent and similarly situated individuals was subject to Nebraska's income tax. Petitioner concluded that it was. Neb. Rev. Rul. 2285-1, Brief for Petitioner 4-5, n. 1. In 1988, respondent brought a declaratory judgment action in the District Court of Lancaster County, Nebraska, asking that Revenue Ruling 22-85-1 be declared invalid as contrary to 31 U. S. C. § 3124(a) and the Supremacy Clause of the United States Constitution. The District Court granted the requested relief. On appeal, the Supreme Court of Nebraska affirmed, concluding that "the income received by [respondent] from repo transactions executed by the [T]rusts involving federal securities is exempt from state taxation under § 3124." Loewenstein v. State, 244 Neb. 82, 90, 504 N. W. 2d 800, 805 (1993).As the Nebraska Supreme Court itself acknowledged, see id., at 88-90, 504 N. W. 2d, at 804-805, several state courts have reached directly contrary conclusions,2 and two Federal2 See Hammond Lead Products, Inc. v. State Tax Commissioners, 575 N. E. 2d 998 (Ind. 1991); Department of Revenue v. Page, 541 So. 2d 1270 (Fla. App. 1989); Capital Preservation Fund, Inc. v. Wisconsin Dept. of Revenue, 145 Wis. 2d 841, 429 N. W. 2d 551 (App. 1988); Andras v. Illinois Dept. of Revenue, 154 Ill. App. 3d 37, 506 N. E. 2d 439 (1987), cert. denied, 485 U. S. 960 (1988).As Justice Caporale pointed out in dissent below, see 244 Neb., at 91-92, 504 N. W. 2d, at 806, at least five other state courts also have reached a result contrary to that of the majority. See Everett v. State Dept. of Revenue and Finance, 470 N. W. 2d 13 (Iowa 1991); Comptroller of the Treasury, Income Tax Div. v. First United Bank & Trust, 320 Md. 352, 578128Courts of Appeals have ruled that interest income derived from repos involving municipal bonds is not exempt from federal taxation under § 103(a)(1) of the Internal Revenue Code.3 We granted certiorari to resolve this conflict, 510 U. S. 1176 (1994), and we now reverse.IIWe begin with the text of 31 U. S. C. § 3124(a). It pro-vides in relevant part:"[O]bligations of the United States Government are exempt from taxation by a State or political subdivision of a State. The exemption applies to each form of taxation that would require the obligation, the interest on the obligation, or both, to be considered in computing a tax .... "Under this provision, a state tax may consider neither the federal "obligation" itself nor the "interest on the obligation." The obligation itself is "considered" when its value is "taken into account, or included in the accounting," Ameri-A. 2d 192 (1990); Borg v. Department of Revenue of Oregon, 308 Ore. 34, 774 P. 2d 1099 (1989); Massman Constr. Co. v. Director of Revenue of Missouri, 765 S. W. 2d 592 (Mo. 1989); In re Sawyer Estate, 149 Vt. 541, 546 A. 2d 784 (1987). Accord, H. J. Heinz Co. v. Department of Treasury, 197 Mich. App. 210, 494 N. W. 2d 850 (1992) (distinguishing Matz v. Department of Treasury, 155 Mich. App. 778, 401 N. W. 2d 62 (1986) (per curiam)).3 See Union Planters Nat. Bank of Memphis v. United States, 426 F. 2d 115 (CA6), cert. denied, 400 U. S. 827 (1970); American Nat. Bank of Austin v. United States, 421 F.2d 442 (CA5), cert. denied, 400 U. S. 819 (1970). Accord, First American Nat. Bank of Nashville v. United States, 467 F. 2d 1098 (CA6 1972) (per curiam). Cf. Citizens Nat. Bank of Waco v. United States, 213 Ct. Cl. 236, 248-251, 551 F.2d 832, 839-840 (1977) (agreeing that these decisions were correct, but distinguishing them on the facts of the case).The Internal Revenue Service also has concluded that a taxpayer in the position of the Trusts who derives interest income by participating in repurchase agreements does not earn interest on the securities involved in those agreements. See Rev. Rul. 74-27, 1974-1 Cum. Bull. 24; Rev. Rul. 77-59, 1977-1 Cum. Bull. 196; Rev. Rul. 79-108, 1979-1 Cum. Bull. 75.129can Bank & Trust Co. v. Dallas County, 463 U. S. 855, 862 (1983), in computing the taxable value of a taxpayer's assets or net worth for the purpose of a property tax or the like. See, e. g., First Nat. Bank of Atlanta v. Bartow County Bd. of Tax Assessors, 470 U. S. 583, 585-586 (1985) (property tax on bank shares). By contrast, the interest on the obligation is "considered" when that interest is included in computing the taxpayer's net income or earnings for the purpose of an income tax or the like. See, e. g., Memphis Bank & Trust Co. v. Garner, 459 U. S. 392, 393-394 (1983) (tax on net earnings of banks).By participating in repos involving federal securities, the Trusts (and thus respondent) earned interest income, and Nebraska's income tax admittedly considered that interest in computing respondent's taxable income. We must decide whether for purposes of § 3124(a) the interest earned by the Trusts from these repos is interest on "obligations of the United States Government" or interest on loans of cash from the Trusts to the Seller-Borrower. We conclude that it is the latter, and we accordingly hold that Nebraska's taxation of the income derived by respondent from the repos does not violate § 3124(a).An investor may earn interest income from a federal security in one or both of two ways. First, the investor may receive periodic payments from the United States Government at the interest rate stated on the face of the security. Such payments are traditionally known as "coupon interest." Second, the investor may acquire the security at a discount from the amount for which it will ultimately be redeemed by the Government at maturity. This discount is also considered interest for purposes of taxation.4 Although "discount4 For example, Treasury notes and bonds, which have maturities of at least one year, pay coupon interest on a semiannual basis and may be issued at discount, par (face amount), or premium, depending on market conditions. See 31 CFR §§ 356.5(b), (c), 356.30 (1994). Treasury bills, by contrast, have maturities of not more than one year, pay no coupon interest, and are always issued at a discount. See § 356.5(a). "For purposes130interest" accrues during the term of the security, the investor does not receive it in cash until the security is redeemed or transferred to a third party.Our examination of the typical repurchase agreement used by the Trusts convinces us that they did not earn either kind of interest on federal securities. Certainly, none of the income the Trusts earn by participating in repos can be attributed to redemptions of the securities or payments of coupon interest by the Government: The Trusts must "pay over to [the Seller-Borrower] as soon as received all principal, interest and other sums paid by or on behalf of the issuer in respect of the Securities and collected by the [Trusts]." App.69.Nor can we conclude that the Trusts receive discount interest when the federal securities are transferred back to the Seller-Borrower in part two of the repo. Under the typical repurchase agreement, any individual repo transaction may involve a mix of federal securities with varying maturities, and therefore varying yields. During the term of the repo, these securities earn discount interest based on their respective yields (and on whether they pay coupon interest). The Trusts, however, earn interest from the Seller-Borrower at an agreed-upon rate that is not based on any of these yields, or any combination of them. Thus, the interest that the Trusts earn by participating in the repo will bear no relation to the discount interest earned on federal securities during the same period.We conclude instead that for purposes of § 3124(a), the interest income earned by the Trusts is interest on loans from the Trusts to the Seller-Borrower, and that the federal securities are involved in the repo transactions as collateral forof taxation the amount of discount at which Treasury bills are originally sold by the United States shall be considered to be interest." §309.4. See generally M. Stigum, The Money Market 36-37 (3d ed. 1990) (hereinafter Stigum).131these loans. Several features of the repos lead to this conclusion. First, at the commencement of a repo, the Trusts pay the Seller-Borrower a fixed sum of money; at the repo's termination, the Seller-Borrower repays that sum with "interest." As explained above, this repo interest bears no relation to either the coupon interest paid or the discount interest accrued on the federal securities during the term of the repo.Second, if the Seller-Borrower defaults on its obligation to pay its debt, the Trusts may liquidate the federal securities. But like any lender who liquidates collateral, the Trusts may retain the proceeds of liquidation only up to the amount of the debt plus expenses; any excess must be paid to the Seller-Borrower. Moreover, if the proceeds are insufficient to satisfy the debt, the Trusts may recover the deficiency from the Seller-Borrower.Third, if the market value of the federal securities involved in the repo falls below 102% of the amount the Trusts originally paid to the Seller-Borrower, the latter must immediately deliver cash or additional securities to the Trusts to restore the value of the securities held by the Trusts to 102% of the original payment amount. On the other hand, if the market value of the securities rises above 102% of this amount, the Seller-Borrower may require the Trusts to return some of the securities to the Seller-Borrower. These provisions are consistent with a lender-borrower relationship in which a prudent lender desires to protect the value of its collateral, while a prudent borrower attempts to pledge as little collateral as possible.Fourth, the Seller-Borrower may, during the term of the repo, "substitute" federal securities of equal market value for the federal securities initially involved in the transaction. A lender, of course, is indifferent to the particular collateral pledged by the borrower, so long as that collateral has sufficient value and liquidity.132The parties have stipulated that the Trusts (or their agents) take "Delivery" of the federal securities at the commencement of a repo. App. 63. But even this fact is consistent with understanding repos as loans of cash from the Trusts to the Seller-Borrower: "Delivery" of the securities perfects the Trusts' security interests in their collateral. Under the most recent version of § 8-321(1) of the Uniform Commercial Code (u. C. C.), "[a] security interest in a security is enforceable and can attach only if it is transferred to the secured party ... pursuant to a provision of [§] 8-313(1)." 2C U. L. A. 459 (1991). Section 8-313(1)(a) provides that transfer of a security interest in a security occurs when the secured party "acquires possession of a certificated security."5 Id., at 402. Of course, possession of the federal securities allows the Trusts to effect an expeditious, nonjudicial liquidation of the securities if the Seller-Borrower defaults. Cf. U. C. C. § 9-504(1), 3B U. L. A. 127 (1992). The ability to liquidate immediately is obviously critical in the context of repo transactions, which may have a lifespan of only a single day.Based on the foregoing analysis, we conclude that the interest income earned by the Trusts from repurchase agreements involving federal securities is not interest on "obligations of the United States Government." For purposes of 31 U. S. C. § 3124(a), the income is instead interest on loans from the Trusts to the Seller-Borrower. Because § 3124(a) exempts only the former type of interest from state taxation,5 The parties have also stipulated that delivery of the federal securities is effected "through the Federal Reserve book entry system." App. 63. Although securities held in that system exist not in the form of certificates but only as entries in the records of a Federal Reserve bank, see generally Stigum 636-638, regulations issued by the Treasury Department and other federal agencies indulge in the fiction that transferees acquire possession of certificated securities. See, e. g., 31 CFR § 306. 118(a) (1994) (transfer of Treasury notes and bonds); § 350.4(a) (transfer of Treasury bills). Of course, these regulations and their relationship to the U. C. C. are not before us here.133Nebraska did not violate that statute when it taxed respondent's interest income.6IIIRespondent offers two objections to this interpretation of § 3124(a). We find neither of them persuasive.AThe typical repurchase agreement at issue in this case explicitly identifies the original transfer of the federal securities to the Trusts as a "sale" and the subsequent transfer back to the Seller-Borrower as a "repurchase." Respondent maintains we should honor this characterization because the repos were structured by the Trusts and the SellerBorrower as sales and repurchases for valid business and regulatory reasons independent of tax considerations. Respondent relies on our statement in Frank Lyon Co. v. United States, 435 U. S. 561, 583-584 (1978):"[W]here ... there is a genuine multiple-party transaction with economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached, the Government should honor the allocation of rights and duties effectuated by the parties."We do not believe it matters for purposes of § 3124(a) whether the repo is characterized as a sale and subsequent repurchase. A sale-repurchase characterization presumably would make the Trusts the "owners" of the federal securities6 It follows from our analysis that it is the Seller-Borrower who earns the interest on the federal securities during the pendency of the repo. Nebraska Revenue Ruling 22-85-1 concludes as much: "The interest earned on the United States government obligations remains the income of the [party] who submitted the securities as collateral for the loan." Brief for Petitioner 4-5, n. 1.134during the term of the repo. But the dispositive question is whether the Trusts earned interest on "obligations of the United States Government," not whether the Trusts "owned" such obligations. As respondent himself concedes, "[t]he concept of 'ownership' is simply not an issue under 31 U. S. C. § 3124." Brief for Respondent 10.Even if it did matter how repos were characterized for purposes of § 3124(a), Frank Lyon Co. does not support respondent's position. Whatever the language relied on by respondent may mean, our decision in that case to honor the taxpayer's characterization of its transaction as a "sale-andleaseback" rather than a "financing transaction" was founded on an examination of "the substance and economic realities of the transaction." 435 U. S., at 582. This examination included identification of 27 specific facts. See id., at 582-583. The substance and economic realities of the Trusts' repo transactions, as manifested in the specific facts discussed above, are that the Trusts do not receive either coupon interest or discount interest from federal securities by participating in repos. Rather, in economic reality, the Trusts receive interest on cash they have lent to the Seller-Borrower.Respondent does not specifically dispute this conclusion but argues that repos are characterized as ordinary sales and repurchases for purposes of federal securities, bankruptcy, and banking law as well as commercial and local government law. We need not examine the accuracy of these assertions, for we are not called upon in this case to interpret any of those bodies of law. Our decision today is an interpretation only of 31 U. S. C. § 3124(a)-not the Securities Exchange Act of 1934, the Bankruptcy Code, or any other body of law.BAt oral argument, respondent advanced another argument against the interpretation of § 3124(a) adopted here: Although petitioner's Revenue Ruling nominally acknowledges the right of the Seller-Borrower to claim the exemption granted by § 3124(a), Nebraska's income tax scheme will not135allow the Seller-Borrower to realize the full amount of the federal exemption. This would allegedly frustrate Congress' purpose in granting the exemption. According to respondent, after the Seller-Borrower has subtracted from its taxable income any "interest or dividends received by [it as] the owner of obligations of the United States," pursuant to subsection (a) of Neb. Rev. Stat. § 77-2716(1) (Supp. 1994), it will then be forced to add back "any interest on indebtedness incurred to carry the [federal] obligations," pursuant to subsection (e) (i) of § 77-2716(1). Respondent conjectures that the interest paid by the Seller-Borrower to the Trusts in the course of repos may constitute just such interest. Respondent therefore hypothesizes that if the Seller-Borrower receives, for example, $100 in interest as the holder of federal securities and pays out $90 to the Trusts in the course of repos involving those securities, Nebraska might give the Seller-Borrower an income tax exemption worth only $10 ($100 minus $90), rather than the $100 exemption that Congress arguably intended.There is a short answer to respondent's multilayered hypothesis: this case does not involve the construction or validity of Nebraska's add-back rule as applied in the repo context. The Nebraska Supreme Court did not cite § 772716(1)(e)(i) in its opinion, and we did not grant certiorari to consider that provision.IVFinally, respondent argues that Nebraska's taxation of income from repos involving federal securities violates the Supremacy Clause of the Constitution. First, respondent contends that Nebraska discriminates against federal obligations because it does not tax income from repos involving Nebraska's own state and local obligations. Although Nebraska Revenue Ruling 22-85-1 concerns repos involving "federal government obligations" and does not mention their Nebraska counterparts, respondent has pointed to no statute, revenue ruling, or other manifestation of Nebraska pol-136icy treating "state" repos any different from "federal" repos for tax purposes.Second, respondent cites our decision in Rockford Life Ins.Co. v. Illinois Dept. of Revenue, 482 U. S. 182, 190 (1987), in which we stated that "the intergovernmental tax immunity doctrine ... is based on the proposition that the borrowing power is an essential aspect of the Federal Government's authority and, just as the Supremacy Clause bars the States from directly taxing federal property, it also bars the States from taxing federal obligations in a manner which has an adverse effect on the United States' borrowing ability." According to respondent, undisputed expert testimony in the record establishes that the taxation at issue in this case will make it more difficult and expensive for the Federal Government to finance the national debt.This expert testimony essentially consists of a 1986 affidavit sworn by Peter D. Sternlight, a former official of the Federal Reserve Bank of New York. In our view, Sternlight's affidavit has no relevance to this case. It concluded only that "an impairment of the repo market would make it less attractive for [government securities] dealers to perform [their] very useful ... function [of underwriting a sizeable portion of Treasury securities], thus adding to Treasury interest costs." App. 42. But the "impairment" that worried Sternlight would result "[i]f repurchase agreements were to lose their present characteristics of flexibility and liquidity," or if repos became "unavailable" to certain kinds of public and private institutional investors. Id., at 42, 43. These possibilities might develop if repos were to be characterized as secured loans for purposes of federal bankruptcy and banking law or of commercial and local government law. Our decision today, however, says nothing about how repos should be characterized for those purposes.77See also Brief for Federal Reserve Bank of New York as Amicus Curiae 9-10 ("The Sternlight Affidavit was filed by the New York Fed in 1986 as amicus curiae in [a case] which had nothing to do with state137Disregarding the inapplicable Sternlight affidavit, we find no evidence in the record that the taxation at issue will impair the market in federal securities or otherwise impair the borrowing ability of the Federal Government. Rockford Life confirmed the rule that "'when effort is made ... to establish the unconstitutional character of a particular tax by claiming its remote effect will be to impair the borrowing power of the government, courts ... ought to have something more substantial to act upon than mere conjecture. The injury ought to be obvious and appreciable.'" 482 U. S., at 190, n. 10 (quoting Plummer v. Coler, 178 U. S. 115, 137138 (1900)). Respondent has shown us no "obvious and appreciable" injury to the borrowing power of the United States Government as a result of Nebraska's taxation of the repo income earned by the Trusts. Rather, he has given us "mere conjecture." In these circumstances, we cannot justifiably conclude that Nebraska's taxation of income derived from repos involving federal securities violates the Supremacy Clause of the Constitution.For the foregoing reasons, the judgment of the Supreme Court of Nebraska is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered | OCTOBER TERM, 1994SyllabusNEBRASKA DEPARTMENT OF REVENUE v.LOEWENSTEINCERTIORARI TO THE SUPREME COURT OF NEBRASKA No. 93-823. Argued October 11, 1994-Decided December 12, 1994Respondent, a Nebraska resident, owns shares in mutual funds (Trusts) that earn some of their income by participating in "repurchase agreements" (repos) involving federal debt securities. In such a transaction, the party holding the securities (Seller-Borrower) transfers them to the Trusts in return for a specified amount of cash. At a later date, the Trusts deliver the securities back to the Seller-Borrower, who credits to the Trusts an amount equal to the cash transfer plus interest at an agreed-upon rate that bears no relation to the yield on the underlying securities. Ultimately, the Trusts' interest income is distributed to respondent in proportion to his shares in the Trusts. After petitioner issued a Revenue Ruling concluding that interest income from repos is subject to Nebraska's income tax, respondent brought this declaratory judgment action in state court, asking that the Revenue Ruling be declared invalid as contrary to the Supremacy Clause and to 31 U. S. C. § 3124(a), which, in relevant part, exempts from state taxation interest on "obligations of the United States Government." The court granted the relief, and the Nebraska Supreme Court affirmed.Held:1. Nebraska's taxation of the income respondent derived from the repos does not violate §3124(a). Pp.128-135.(a) For purposes of § 3124(a), the interest income earned by the Trusts is interest on loans from the Trusts to the Seller-Borrower, not interest on federal securities; in this context, the securities are merely collateral for these loans. Several features of the repos lead to this conclusion: (1) at a repo's commencement, the Trusts pay the SellerBorrower a fixed sum of money, which is repaid with interest at a rate bearing no relation to either the coupon interest paid or discount interest accrued on the federal securities during the term of the repo; (2) the Trusts may liquidate the securities should the Seller-Borrower default on the debt, but, like a lender, they must pay to the Seller-Borrower any proceeds in excess of the amount of the debt plus expenses, and may recover any deficiency from the Seller-Borrower; (3) the market value of the securities must be maintained at 102% of the original payment amount, with the Seller-Borrower delivering cash or additional securities if the value falls below 102%, and the Trusts returning securi-124ties if the value exceeds 102%; and (4) the Seller-Borrower may, during the term of the repo, substitute federal securities of equal market value for the securities initially involved in the transaction. The fact that the Trusts take "delivery" of the federal securities at the repo's commencement also is consistent with understanding the repos as loans, since "delivery" perfects the Trusts' security interests in their collateral. Pp. 128-133.(b) Respondent's two objections to this interpretation of § 3124(a) are unpersuasive. It does not matter that the Trusts and SellerBorrower characterize the repos as sales and repurchases, since the substance and economic realities of the transactions show that the Trusts receive interest on cash they have lent to the Seller-Borrower. Cf. Frank Lyon Co. v. United States, 435 U. S. 561, 582. And, contrary to respondent's argument, this case does not involve the construction or validity of the Nebraska income tax statute's add-back rule. Pp. 133-135.2. Nebraska's taxation of income from repos involving federal securities does not violate the Supremacy Clause. Respondent has pointed to no statute, revenue ruling, or other manifestation of Nebraska policy that treats "state" repos differently from "federal" repos for tax purposes. Nor does the taxation at issue make it more difficult and expensive for the Federal Government to finance the national debt. Expert testimony referred to by respondent has no relevance to this case, and respondent has shown no "obvious and appreciable" injury to the Government's borrowing power as a result of Nebraska's taxation of the Trusts' repo income, see Rockford Life Ins. Co. v. Illinois Dept. of Revenue, 482 U. S. 182, 190, n. 10. Pp. 135-137.244 Neb. 82, 504 N. W. 2d 800, reversed and remanded.THOMAS, J., delivered the opinion for a unanimous Court.L. Jay Bartel, Assistant Attorney General of Nebraska, argued the cause for petitioner. With him on the briefs was Don Stenberg, Attorney General.Terry R. Wittler argued the cause for respondent. With him on the brief was Larry A. Holle. **Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Timothy G. Laddish, Assistant Attorney General, Joyce E. Hee, Deputy Attorney General, and Patrick J. Kusiak, and by the Attorneys General for their respective jurisdictions as follows: James H. Evans of Alabama, Grant Woods of Arizona, Charles M. Oberly III of Delaware, Roland W Burris125Full Text of Opinion |
345 | 1997_96-1590 | tures" that could qualify it as a "political committee." If it decides that the communications here do not qualify, then the lower courts can still evaluate the significance of the communicative context in which the case arises. If, on the other hand, it decides that they do qualify, the matter will become moot. Pp. 26-29.101 F.3d 731, vacated and remanded.BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed a dissenting opinion, in which O'CONNOR and THOMAS, JJ., joined, post, p. 29.Solicitor General Waxman argued the cause for the United States. With him on the briefs were Acting Solicitor General Dellinger, Malcolm L. Stewart, Lawrence M. Noble, Richard B. Bader, and David Kolker.Daniel M. Schember argued the cause for respondents.With him on the brief was Abdeen Jabara.*JUSTICE BREYER delivered the opinion of the Court.The Federal Election Commission (FEC) has determined that the American Israel Public Affairs Committee (AlP AC) is not a "political committee" as defined by the Federal Election Campaign Act of 1971 (FECA or Act), 86 Stat. 11, as amended, 2 U. S. C. § 431(4), and, for that reason, the FEC has refused to require AIPAC to make disclosures regarding its membership, contributions, and expenditures that FECA would otherwise require. We hold that respondents, a group of voters, have standing to challenge the*Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Joel M. Gora, Steven R. Shapiro, and Arthur N. Eisenberg; and for the National Right to Life Committee, Inc., by James Bopp, Jr.A. Stephen Hut, Jr., Roger M. Witten, Jeffrey P. Singdahlsen, and Donald J. Simon filed a brief for Common Cause as amicus curiae urging affirmance.Briefs of amici curiae were filed for the American Israel Public Affairs Committee by Theodore B. Olson, Mel Levine, Thomas G. Hungar, and Philip Friedman; and for the Brennan Center for Justice by Burt Neuborne.14Commission's determination in court, and we remand this case for further proceedings.IIn light of our disposition of this case, we believe it necessary to describe its procedural background in some detail. As commonly understood, the FECA seeks to remedy any actual or perceived corruption of the political process in several important ways. The Act imposes limits upon the amounts that individuals, corporations, "political committees" (including political action committees), and political parties can contribute to a candidate for federal political office. §§ 441a(a), 441a(b), 441b. The Act also imposes limits on the amount these individuals or entities can spend in coordination with a candidate. (It treats these expenditures as "contributions to" a candidate for purposes of the Act.) § 441a(a)(7)(B)(i). As originally written, the Act set limits upon the total amount that a candidate could spend of his own money, and upon the amounts that other individuals, corporations, and "political committees" could spend independent of a candidate-though the Court found that certain of these last-mentioned limitations violated the First Amendment. Buckley v. Valeo, 424 U. S. 1, 39-59 (1976) (per curiam); Federal Election Comm'n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985); cf. Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U. S. 604, 613-619 (1996) (opinion of BREYER, J.).This case concerns requirements in the Act that extend beyond these better-known contribution and expenditure limitations. In particular, the Act imposes extensive recordkeeping and disclosure requirements upon groups that fall within the Act's definition of a "political committee." Those groups must register with the FEC, appoint a treasurer, keep names and addresses of contributors, track the amount and purpose of disbursements, and file complex FEC15reports that include lists of donors giving in excess of $200 per year (often, these donors may be the group's members), contributions, expenditures, and any other disbursements irrespective of their purposes. §§ 432-434.The Act's use of the word "political committee" calls to mind the term "political action committee," or "PAC," a term that normally refers to organizations that corporations or trade unions might establish for the purpose of making contributions or expenditures that the Act would otherwise prohibit. See §§ 431(4)(B), 441b. But, in fact, the Act's term "political committee" has a much broader scope. The Act states that a "political committee" includes "any committee, club, association or other group of persons which receives" more than $1,000 in "contributions" or "which makes" more than $1,000 in "expenditures" in any given year. § 431(4)(A) (emphasis added).This broad definition, however, is less universally encompassing than at first it may seem, for later definitional subsections limit its scope. The Act defines the key terms "contribution" and "expenditure" as covering only those contributions and expenditures that are made "for the purpose of influencing any election for Federal office." §§ 431(8)(A)(i), (9)(A)(i). Moreover, the Act sets forth detailed categories of disbursements, loans, and assistancein-kind that do not count as a "contribution" or an "expenditure," even when made for election-related purposes. §§ 431(8)(B), (9)(B). In particular, assistance given to help a candidate will not count toward the $1,000 "expenditure" ceiling that qualifies an organization as a "political committee" if it takes the form of a "communication" by an organization "to its members"-as long as the organization at issue is a "membership organization or corporation" and it is not "organized primarily for the purpose of influencing the nomination ... or electio[n] of any individual." § 431(9)(B)(iii).This case arises out of an effort by respondents, a group of voters with views often opposed to those of AlP AC, to16persuade the FEC to treat AIPAC as a "political committee." Respondents filed a complaint with the FEC, stating that AIPAC had made more than $1,000 in qualifying "expenditures" per year, and thereby became a "political committee." 1 Record, Exh. B, p. 4. They added that AlP AC had violated the FEC provisions requiring "political committee[sJ" to register and to make public the information about members, contributions, and expenditures to which we have just referred. Id., at 2, 9-17. Respondents also claimed that AIPAC had violated § 441b of FECA, which prohibits corporate campaign "contribution[sJ" and "expenditure[sJ." Id., at 2, 16-17. They asked the FEC to find that AIPAC had violated the Act, and, among other things, to order AlP AC to make public the information that FECA demands of a "political committee." Id., at 33-34.AIPAC asked the FEC to dismiss the complaint. AIPAC described itself as an issue-oriented organization that seeks to maintain friendship and promote goodwill between the United States and Israel. App. 120; see also Brief for AIPAC as Amicus Curiae (AIPAC Brief) 1,3. AIPAC conceded that it lobbies elected officials and disseminates information about candidates for public office. App. 43, 120; see also AlP AC Brief 6. But in responding to the § 441b charge, AlP AC denied that it had made the kinds of "expenditures" that matter for FECA purposes (i. e., the kinds of electionrelated expenditures that corporations cannot make, and which count as the kind of expenditures that, when they exceed $1,000, qualify a group as a "political committee").To put the matter more specifically: AlP AC focused on certain "expenditures" that respondents had claimed were election related, such as the costs of meetings with candidates, the introduction of AlP AC members to candidates, and the distribution of candidate position papers. AlP AC said that its spending on such activities, even if election related, fell within a relevant exception. They amounted, said AlP AC,17to communications by a membership organization with its members, App. 164-166, which the Act exempts from its definition of "expenditures," § 431(9)(B)(iii). In AIPAC's view, these communications therefore did not violate § 441b's corporate expenditure prohibition. 2 Record, Doc. No. 19, pp. 2-6. (And, if AlP AC was right, those expenditures would not count toward the $1,000 ceiling on "expenditures" that might transform an ordinary issue-related group into a "political committee." § 431(4).)The FEC's General Counsel concluded that, between 1983 and 1988, AlP AC had indeed funded communications of the sort described. The General Counsel said that those expenditures were campaign related, in that they amounted to advocating the election or defeat of particular candidates. App. 106-108. He added that these expenditures were "likely to have crossed the $1,000 threshold." Id., at 146. At the same time, the FEC closed the door to AlP AC's invocation of the "communications" exception. The FEC said that, although it was a "close question," these expenditures were not membership communications, because that exception applies to a membership organization's communications with its members, and most of the persons who belonged to AlP AC did not qualify as "members" for purposes of the Act. App. to Pet. for Cert. 97a-98a; see also App. 170-173. Still, given the closeness of the issue, the FEC exercised its discretion and decided not to proceed further with respect to the claimed "corporate contribution" violation. App. to Pet. for Cert. 98a.The FEC's determination that many of the persons who belonged to AIPAC were not "members" effectively foreclosed any claim that AlP AC's communications did not count as "expenditures" for purposes of determining whether it was a "political committee." Since AIPAC's activities fell outside the "membership communications" exception, AlP AC could not invoke that exception as a way of escaping18the scope of the Act's term "political committee" and the Act's disclosure provisions, which that definition triggers.The FEC nonetheless held that AlP AC was not subject to the disclosure requirements, but for a different reason. In the FEC's view, the Act's definition of "political committee" includes only those organizations that have as a "major purpose" the nomination or election of candidates. Cf. Buckley v. Valeo, 424 U. S., at 79. AIPAC, it added, was fundamentally an issue-oriented lobbying organization, not a campaign-related organization, and hence AIPAC fell outside the definition of a "political committee" regardless. App. 146. The FEC consequently dismissed respondents' complaint.Respondents filed a petition in Federal District Court seeking review of the FEC's determination dismissing their complaint. See §§ 437g(a)(8)(A), 437g(a)(8)(C). The District Court granted summary judgment for the FEC, and a divided panel of the Court of Appeals affirmed. 66 F.3d 348 (CADC 1995). The en banc Court of Appeals reversed, however, on the ground that the FEC's "major purpose" test improperly interpreted the Act's definition of a "political committee." 101 F.3d 731 (CADC 1997). We granted the FEC's petition for certiorari, which contained the following two questions:"1. Whether respondents had standing to challenge the Federal Election Commission's decision not to bring an enforcement action in this case."2. Whether an organization that spends more than $1,000 on contributions or coordinated expenditures in a calendar year, but is neither controlled by a candidate nor has its major purpose the nomination or election of candidates, is a 'political committee' within the meaning of the [Act]." Brief for Petitioner I.We shall answer the first of these questions, but not the second.19IIThe Solicitor General argues that respondents lack standing to challenge the FEC's decision not to proceed against AlP AC. He claims that they have failed to satisfy the "prudential" standing requirements upon which this Court has insisted. See, e. g., National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U. S. 479, 488 (1998) (NCUA); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970) (Data Processing). He adds that respondents have not shown that they "suffe[r] injury in fact," that their injury is "fairly traceable" to the FEC's decision, or that a judicial decision in their favor would "redres[s]" the injury. E. g., Bennett v. Spear, 520 U. S. 154, 162 (1997) (internal quotation marks omitted); Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561 (1992). In his view, respondents' District Court petition consequently failed to meet Article Ill's demand for a "case" or "controversy."We do not agree with the FEC's "prudential standing" claim. Congress has specifically provided in FECA that "[a]ny person who believes a violation of this Act ... has occurred, may file a complaint with the Commission." § 437g(a)(1). It has added that "[a]ny party aggrieved by an order of the Commission dismissing a complaint filed by such party ... may file a petition" in district court seeking review of that dismissal. § 437g(a)(8)(A). History associates the word "aggrieved" with a congressional intent to cast the standing net broadly-beyond the common-law interests and substantive statutory rights upon which "prudential" standing traditionally rested. Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309 U. S. 470 (1940); Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994 (CADC 1966) (Burger, J.); Associated Industries of New York State v. Ickes, 134 F.2d 694 (CA2 1943) (Frank, J.). Cf. Administrative Procedure Act, 5 U. S. C. § 702 (stating that those "suf-20fering legal wrong" or "adversely affected or aggrieved ... within the meaning of a relevant statute" may seek judicial review of agency action).Moreover, prudential standing is satisfied when the injury asserted by a plaintiff" 'arguably [falls] within the zone of interests to be protected or regulated by the statute ... in question.'" NCUA, supra, at 488 (quoting Data Processing, supra, at 153). The injury of which respondents complaintheir failure to obtain relevant information-is injury of a kind that FECA seeks to address. Buckley, supra, at 6667 ("political committees" must disclose contributors and disbursements to help voters understand who provides which candidates with financial support). We have found nothing in the Act that suggests Congress intended to exclude voters from the benefits of these provisions, or otherwise to restrict standing, say, to political parties, candidates, or their committees.Given the language of the statute and the nature of the injury, we conclude that Congress, intending to protect voters such as respondents from suffering the kind of injury here at issue, intended to authorize this kind of suit. Consequently, respondents satisfy "prudential" standing requirements. Cf. Raines v. Byrd, 521 U. S. 811, 820, n. 3 (1997) (explicit grant of authority to bring suit "eliminates any prudential standing limitations and significantly lessens the risk of unwanted conflict with the Legislative Branch").Nor do we agree with the FEC or the dissent that Congress lacks the constitutional power to authorize federal courts to adjudicate this lawsuit. Article III, of course, limits Congress' grant of judicial power to "cases" or "controversies." That limitation means that respondents must show, among other things, an "injury in fact" -a requirement that helps assure that courts will not "pass upon ... abstract, intellectual problems," but adjudicate "concrete, living contestes] between adversaries." Coleman v. Miller, 307 U. S. 433, 460 (1939) (Frankfurter, J., dissenting); see also Bennett,21supra, at 167; Lujan, supra, at 560-561. In our view, respondents here have suffered a genuine "injury in fact."The "injury in fact" that respondents have suffered consists of their inability to obtain information-lists of AlP AC donors (who are, according to AIPAC, its members), and campaign-related contributions and expenditures-that, on respondents' view of the law, the statute requires that AlP AC make public. There is no reason to doubt their claim that the information would help them (and others to whom they would communicate it) to evaluate candidates for public office, especially candidates who received assistance from AlP AC, and to evaluate the role that AlP AC's financial assistance might play in a specific election. Respondents' injury consequently seems concrete and particular. Indeed, this Court has previously held that a plaintiff suffers an "injury in fact" when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute. Public Citizen v. Department of Justice, 491 U. S. 440, 449 (1989) (failure to obtain information subject to disclosure under Federal Advisory Committee Act "constitutes a sufficiently distinct injury to provide standing to sue"). See also Havens Realty Corp. v. Coleman, 455 U. S. 363, 373-374 (1982) (deprivation of information about housing availability constitutes "specific injury" permitting standing).The dissent refers to United States v. Richardson, 418 U. S. 166 (1974), a case in which a plaintiff sought information (details of Central Intelligence Agency (CIA) expenditures) to which, he said, the Constitution's Accounts Clause, Art. I, § 9, cl. 7, entitled him. The Court held that the plaintiff there lacked Article III standing. 418 U. S., at 179-180. The dissent says that Richardson and this case are "indistinguishable." Post, at 34. But as the parties' briefs suggest-for they do not mention Richardson-that case does not control the outcome here.Richardson's plaintiff claimed that a statute permitting the CIA to keep its expenditures nonpublic violated the Ac-22counts Clause, which requires that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." 418 U. S., at 167-169. The Court held that the plaintiff lacked standing because there was "no 'logical nexus' between the [plaintiff's] asserted status of taxpayer and the claimed failure of the Congress to require the Executive to supply a more detailed report of the [CIA's] expenditures." Id., at 175; see also id., at 174 (quoting Flast v. Cohen, 392 U. S. 83, 102 (1968), for the proposition that in "taxpayer standing" cases, there must be "'a logical nexus between the status asserted and the claim sought to be adjudicated' ").In this case, however, the "logical nexus" inquiry is not relevant. Here, there is no constitutional provision requiring the demonstration of the "nexus" the Court believed must be shown in Richardson and Flast. Rather, there is a statute which, as we previously pointed out, supra, at 19-20, does seek to protect individuals such as respondents from the kind of harm they say they have suffered, i. e., failing to receive particular information about campaign-related activities. Cf. Richardson, 418 U. S., at 178, n. 11.The fact that the Court in Richardson focused upon taxpayer standing, id., at 171-178, not voter standing, places that case at still a greater distance from the case before us. We are not suggesting, as the dissent implies, post, at 32-34, that Richardson would have come out differently if only the plaintiff had asserted his standing to sue as a voter, rather than as a taxpayer. Faced with such an assertion, the Richardson Court would simply have had to consider whether "the Framers ... ever imagined that general directives [of the Constitution] ... would be subject to enforcement by anindividual citizen." 418 U. S., at 178, n. 11 (emphasis added). But since that answer (like the answer to whether there was taxpayer standing in Richardson) would have rested in significant part upon the Court's view of the Accounts Clause, it still would not control our answer in this case. All this is23to say that the legal logic which critically determined Richardson's outcome is beside the point here.The FEC's strongest argument is its contention that this lawsuit involves only a "generalized grievance." (Indeed, if Richardson is relevant at all, it is because of its broad discussion of this matter, see id., at 176-178, not its basic rationale.) The FEC points out that respondents' asserted harm (their failure to obtain information) is one which is "'shared in substantially equal measure by all or a large class of citizens.'" Brief for Petitioner 28 (quoting Warth v. Seldin, 422 U. S. 490, 499 (1975)). This Court, the FEC adds, has often said that "generalized grievance[s]" are not the kinds of harms that confer standing. Brief for Petitioner 28; see also Lujan, 504 U. S., at 573-574; Allen v. Wright, 468 U. S. 737, 755-756 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 475-479 (1982); Richardson, supra, at 176-178; Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447, 487 (1923); Ex parte Levitt, 302 U. S. 633, 634 (1937) (per curiam). Whether styled as a constitutional or prudential limit on standing, the Court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance. Warth, supra, at 500; Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 222 (1974); Richardson, 418 U. S., at 179; id., at 188-189 (Powell, J., concurring); see also Flast, supra, at 131 (Harlan, J., dissenting).The kind of judicial language to which the FEC points, however, invariably appears in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature-for example, harm to the "common concern for obedience to law." L. Singer & Sons v. Union Pacific R. Co., 311 U. S. 295, 303 (1940); see also Allen, supra, at 754; Schlesinger, supra, at 217. Cf. Lujan, supra, at 572-578 (injury to interest in seeing that certain procedures are fol-24lowed not normally sufficient by itself to confer standing); Frothingham, supra, at 488 (party may not merely assert that "he suffers in some indefinite way in common with people generally"); Perkins v. Lukens Steel Co., 310 U. S. 113, 125 (1940) (plaintiffs lack standing because they have failed to show injury to "a particular right of their own, as distinguished from the public's interest in the administration of the law"). The abstract nature of the harm-for example, injury to the interest in seeing that the law is obeyed-deprives the case of the concrete specificity that characterized those controversies which were "the traditional concern of the courts at Westminster," Coleman, 307 U. S., at 460 (Frankfurter, J., dissenting); and which today prevents a plaintiff from obtaining what would, in effect, amount to an advisory opinion. Cf. Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240-241 (1937).Often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found "injury in fact." See Public Citizen, 491 U. S., at 449-450 ("The fact that other citizens or groups of citizens might make the same complaint after unsuccessfully demanding disclosure ... does not lessen [their] asserted injury"). Thus the fact that a political forum may be more readily available where an injury is widely shared (while counseling against, say, interpreting a statute as conferring standing) does not, by itself, automatically disqualify an interest for Article III purposes. Such an interest, where sufficiently concrete, may count as an "injury in fact." This conclusion seems particularly obvious where (to use a hypothetical example) large numbers of individuals suffer the same common-law injury (say, a widespread mass tort), or where large numbers of voters suffer interference with voting rights conferred by law. Cf. Lujan, supra, at 572; Shaw v. Hunt, 517 U. S. 899, 905 (1996). We conclude that, similarly, the informational injury at issue here, di-25rectly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts.Respondents have also satisfied the remaining two constitutional standing requirements. The harm asserted is "fairly traceable" to the FEC's decision about which respondents complain. Of course, as the FEC points out, Brief for Petitioner 29-31, it is possible that even had the FEC agreed with respondents' view of the law, it would still have decided in the exercise of its discretion not to require AlP AC to produce the information. Cf. App. to Pet. for Cert. 98a (deciding to exercise prosecutorial discretion, see Heckler v. Chaney, 470 U. S. 821 (1985), and "take no further action" on § 441b allegation against AIPAC). But that fact does not destroy Article III "causation," for we cannot know that the FEC would have exercised its prosecutorial discretion in this way. Agencies often have discretion about whether or not to take a particular action. Yet those adversely affected by a discretionary agency decision generally have standing to complain that the agency based its decision upon an improper legal ground. See, e. g., Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967) (discussing presumption of reviewability of agency action); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 410 (1971). If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency's action and remand the case-even though the agency (like a new jury after a mistrial) might later, in the exercise of its lawful discretion, reach the same result for a different reason. SEC v. Chenery Corp., 318 U. S. 80 (1943). Thus respondents' "injury in fact" is "fairly traceable" to the FEC's decision not to issue its complaint, even though the FEC might reach the same result exercising its discretionary powers lawfully. For similar reasons, the courts in this case can "redress" respondents' "injury in fact."26Finally, the FEC argues that we should deny respondents standing because this case involves an agency's decision not to undertake an enforcement action-an area generally not subject to judicial review. Brief for Petitioner 23, 29. In Heckler, this Court noted that agency enforcement decisions "ha[ve] traditionally been 'committed to agency discretion,'" and concluded that Congress did not intend to alter that tradition in enacting the AP A. 470 U. S., at 832; cf. 5 U. S. C. § 701(a) (courts will not review agency actions where "statutes preclude judicial review," or where the "agency action is committed to agency discretion by law"). We deal here with a statute that explicitly indicates the contrary.In sum, respondents, as voters, have satisfied both prudential and constitutional standing requirements. They may bring this petition for a declaration that the FEC's dismissal of their complaint was unlawful. See 2 U. S. C. § 437 g(a)(8) (A).IIIThe second question presented in the FEC's petition for certiorari is whether an organization that otherwise satisfies the Act's definition of a "political committee," and thus is subject to its disclosure requirements, nonetheless falls outside that definition because "its major purpose" is not "the nomination or election of candidates." The question arises because this Court, in Buckley, said:"To fulfill the purposes of the Act [the term 'political committee'] need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate." 424 U. S., at 79.The Court reiterated in Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 252, n. 6 (1986):"[A]n entity subject to regulation as a 'political committee' under the Act is one that is either 'under the control27of a candidate or the major purpose of which is the nomination or election of a candidate.'"The FEC here interpreted this language as narrowing the scope of the statutory term "political committee," wherever applied. And, as we have said, the FEC's General Counsel found that AlP AC fell outside that definition because the nomination or election of a candidate was not AlP AC's "major purpose." App. 146.The en banc Court of Appeals disagreed with the FEC.It read this Court's narrowing construction of the term "political committee" as turning on the First Amendment problems presented by regulation of "independent expenditures" (i. e., "an expenditure by a person expressly advocating the election or defeat of a clearly identified candidate which is made without cooperation or consultation with any candidate," § 431(17)). 101 F. 3d, at 741. The Court of Appeals concluded that the language in this Court's prior decisions narrowing the definition of "political committee" did not apply where the special First Amendment "independent expenditure" problem did not exist. Id., at 742-743.The Solicitor General argues that this Court's narrowing definition of "political committee" applies not simply in the context of independent expenditures, but across the board. We cannot squarely address that matter, however, because of the unusual and complex circumstances in which this case arises. As we previously mentioned, supra, at 16-17, the FEC considered a related question, namely, whether AlPAC was exempt from § 441b's prohibition of corporate campaign expenditures, on the grounds that the so-called "expenditures" involved only AlP AC's communications with its members. The FEC held that the statute's exception to the "expenditure" definition for communications by a "membership organization" did not apply because many of the persons who belonged to AlPAC were not "members" as defined by FEC regulation. The FEC acknowledged, however, that this was a "close question." App. to Pet. for Cert. 98a; see also App.28144-146, 170-171. In particular, the FEC thought that many of the persons who belonged to AlP AC lacked sufficient control of the organization's policies to qualify as "members" for purposes of the Act.A few months later, however, the Court of Appeals overturned the FEC's regulations defining "members," in part because that court thought the regulations defined membership organizations too narrowly in light of an organization's "First Amendment right to communicate with its 'members.'" Chamber of Commerce v. Federal Election Comm'n, 69 F.3d 600, 605 (CADC 1995). The FEC has subsequently issued proposed rules redefining "members." Under these rules, it is quite possible that many of the persons who belong to AIPAC would be considered "members." If so, the communications here at issue apparently would not count as the kind of "expenditures" that can turn an organization into a "political committee," and AlP AC would fall outside the definition for that reason, rather than because of the "major purpose" test. 62 Fed. Reg. 66832 (1997) (proposed 11 CFR pts. 100 and 114).The consequence for our consideration of Question Two now is that the FEC's new rules defining "membership organization" could significantly affect the interpretive issue presented by this question. If the Court of Appeals is right in saying that this Court's narrowing interpretation of "political committee" in Buckley reflected First Amendment concerns, 101 F. 3d, at 741, then whether the "membership communications" exception is interpreted broadly or narrowly could affect our evaluation of the Court of Appeals' claim that there is no constitutionally driven need to apply Buckley's narrowing interpretation in this context. The scope of the "membership communications" exception could also affect our evaluation of the Solicitor General's related argument that First Amendment concerns (reflected in Buck ley's narrowing interpretation) are present whenever the Act requires disclosure. In any event, it is difficult to decide the29basic issue that Question Two presents without considering the special communicative nature of the "expenditures" here at issue, cf. United States v. CIO, 335 U. S. 106, 121 (1948) (describing relation between membership communications and constitutionally protected rights of association). And, a considered determination of the scope of the statutory exemption that Congress enacted to address membership communications would helpfully inform our consideration of the "major purpose" test.The upshot, in our view, is that we should permit the FEC to address, in the first instance, the issue presented by Question Two. We can thereby take advantage of the relevant agency's expertise, by allowing it to develop a more precise rule that may dispose of this case, or at a minimum, will aid the Court in reaching a more informed conclusion. In our view, the FEC should proceed to determine whether or not AlP AC's expenditures qualify as "membership communications," and thereby fall outside the scope of "expenditures" that could qualify it as a "political committee." If the FEC decides that despite its new rules, the communications here do not qualify for this exception, then the lower courts, in reconsidering respondents' arguments, can still evaluate the significance of the communicative context in which the case arises. If, on the other hand, the FEC decides that AlP AC's activities fall within the "membership communications" exception, the matter will become moot.For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered | OCTOBER TERM, 1997SyllabusFEDERAL ELECTION COMMISSION v. AKINS ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 96-1590. Argued January 14, 1998-Decided June 1, 1998The Federal Election Campaign Act of 1971 (FECA) seeks to remedy corruption of the political process. As relevant here, it imposes extensive recordkeeping and disclosure requirements upon "political committee[s]," which include "any committee, club, association or other group of persons which receives" more than $1,000 in "contributions" or "which makes" more than $1,000 in "expenditures" in any given year, 2 U. S. C. §431(4)(A) (emphasis added), "for the purpose of influencing any election for Federal office," §§ 431(8)(A)(i), (9)(A)(i). Assistance given to help a particular candidate will not count toward the $1,000 "expenditure" ceiling if it takes the form of a "communication" by a "membership organization or corporation" "to its members" -as long as the organization is not "organized primarily for the purpose of influencing [any individual's] nomination ... or election." § 431(9)(B)(iii). Respondents, voters with views often opposed to those of the American Israel Public Mfairs Committee (AIPAC), filed a compliant with petitioner Federal Election Commission (FE C), asking the FEC to find that AIPAC had violated FECA and, among other things, to order AIPAC to make public the information that FECA demands of political committees. In dismissing the complaint, the FEC found that AIPAC's communications fell outside FECA's membership communications exception. Nonetheless, it concluded, AIPAC was not a "political committee" because, as an issue-oriented lobbying organization, its major purpose was not the nomination or election of candidates. The District Court granted the FEC summary judgment when it reviewed the determination, but the en banc Court of Appeals reversed on the ground that the FEC's major purpose test improperly interpreted FECA's definition of a political committee. The case presents this Court with two questions: (1) whether respondents had standing to challenge the FEC's decision, and (2) whether an organization falls outside FECA's definition of a "political committee" because "its major purpose" is not "the nomination or election of candidates."Held:1. Respondents, as voters seeking information to which they believe FECA entitles them, have standing to challenge the FEC's decision not to bring an enforcement action. Pp. 19-26.12Syllabus(a) Respondents satisfy prudential standing requirements. FECA specifically provides that "[a]ny person" who believes FECA has been violated may file a complaint with the FEC, §437g(a)(1), and that "[a]ny party aggrieved" by an FEC order dismissing such party's complaint may seek district court review of the dismissal, § 437g(a)(8)(A). History associates the word "aggrieved" with a congressional intent to cast the standing net broadly-beyond the common-law interests and substantive statutory rights upon which "prudential" standing traditionally rested. E. g., FCC v. Sanders Brothers Radio Station, 309 U. S. 470. Moreover, respondents' asserted injury-their failure to obtain relevant information-is injury of a kind that FECA seeks to address. Pp.19-20.(b) Respondents also satisfy constitutional standing requirements.Their inability to obtain information that, they claim, FECA requires AIPAC to make public meets the genuine "injury in fact" requirement that helps assure that the court will adjudicate "[a] concrete, living contest between adversaries." Coleman v. Miller, 307 U. S. 433, 460 (Frankfurter, J., dissenting). United States v. Richardson, 418 U. S. 166, distinguished. The fact that the harm at issue is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts where the harm is concrete. See Public Citizen v. Department of Justice, 491 U. S. 440, 449-450. The informational injury here, directly related to voting, the most basic of political rights, is sufficiently concrete. Respondents have also satisfied the remaining two constitutional standing requirements: The harm asserted is "fairly traceable" to the FEC's decision not to issue its complaint, and the courts in this case can "redress" that injury. Pp. 20-25.(c) Finally, FECA explicitly indicates a congressional intent to alter the traditional view that agency enforcement decisions are not subject to judicial review. Heckler v. Chaney, 470 U. S. 821, 832, distinguished. P. 26.2. Because of the unusual and complex circumstances in which the case arises, the second question presented cannot be addressed here, and the case must be remanded. After the FEC determined that many persons belonging to AIPAC were not "members" under FEC regulations, the Court of Appeals overturned those regulations in another case, in part because it thought they defined membership organizations too narrowly in light of an organization's First Amendment right to communicate with its members. The FEC's new "membership organization" rules could significantly affect the interpretative issue presented by Question Two. Thus, the FEC should proceed to determine whether or not AIPAC's expenditures qualify as "membership communications" under the new rules, and thereby fall outside the scope of "expendi-13Full Text of Opinion |
346 | 1998_97-6203 | SOUTER, J., delivered the opinion of the Court, in which STEVENS, SCALIA, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., post, p. 252, and SCALIA, J., post, p. 253, filed concurring opinions. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and BREYER, JJ., joined, post, p. 254.Quin Denvir argued the cause for petitioner. With him on the briefs were Francine Zepeda and John P. Balazs.Edward C. DuMont argued the cause for the United States. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Nina Goodman. *JUSTICE SOUTER delivered the opinion of the Court.This case turns on whether the federal carjacking statute, 18 U. S. C. § 2119, as it was when petitioner was charged, defined three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict. We think the better reading is of three distinct offenses, particularly in light of the rule that any interpretive uncertainty should be resolved to avoid serious questions about the statute's constitutionality.IIn December 1992, petitioner, Nathaniel Jones, and two others, Oliver and McMillan, held up two men, Mutanna and Mardaie. While Jones and McMillan went through the victims' pockets, Oliver stuck his gun in Mutanna's left ear, and later struck him on the head. Oliver and McMillan made their getaway in the Cadillac Jones had driven to the scene, while Jones forced Mardaie into Mutanna's Honda and drove off after them. After stopping to put Mardaie out, Jones*David M. Porter and Edward M. Chikofsky filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.230sped away in the stolen car subject to police pursuit, which ended when Jones crashed into a telephone pole. United States v. Oliver, 60 F.3d 547, 549 (CA9 1995); Tr. 159, 387, 310 (July 27-28, 1993).A grand jury in the Eastern District of California indicted Jones and his two accomplices on two counts: using or aiding and abetting the use of a firearm during and in relation to a crime of violence, in violation of 18 U. s. C. § 924(c), and carjacking or aiding and abetting carjacking, in violation of 18 U. s. C. § 2119, which then read as follows:"Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall-"(1) be fined under this title or imprisoned not more than 15 years, or both,"(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and"(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both." 18 U. s. C. § 2119 (1988 ed., Supp. V).lThe indictment made no reference to the statute's numbered subsections and charged none of the facts mentioned in the latter two, and at the arraignment the Magistrate Judge told1 Congress amended the statute in 1994 and 1996. In the Violent Crime Control and Law Enforcement Act of 1994, it deleted the phrase in the first paragraph concerning firearm possession and replaced it with the phrase, "with the intent to cause death or serious bodily harm." § 60003(a)(14), 108 Stat. 1970. It also made death a possible punishment for offenses committed under subsection (3). Ibid. In the Carjacking Correction Act of 1996, Congress specified that the term "serious bodily injury" in subsection (2) includes certain sexual assaults. § 2, 110 Stat. 3020.231Jones that he faced a maximum sentence of 15 years on the carjacking charge. App. 4-5, 7. Consistently with this advice, the District Court's subsequent jury instructions defined the elements subject to the Government's burden of proof by reference solely to the first paragraph of § 2119, with no mention of serious bodily injury. Id., at 10. The jury found Jones guilty on both counts.The case took a new turn, however, with the arrival of the presentence report, which recommended that petitioner be sentenced to 25 years for the carjacking because one of the victims had suffered serious bodily injury. The report noted that Mutanna had testified that Oliver's gun caused profuse bleeding in Mutanna's ear, and that a physician had concluded that Mutanna had suffered a perforated eardrum, with some numbness and permanent hearing loss. I d., at 15-16; 60 F. 3d, at 554. Jones objected that the 25-year recommendation was out of bounds, since serious bodily injury was an element of the offense defined in part by § 2119(2), which had been neither pleaded in the indictment nor proven before the jury. App. 12-13. The District Court saw the matter differently and, based on its finding that the serious bodily injury allegation was supported by a preponderance of the evidence, imposed a 25-year sentence on the carjacking count, ibid., together with a consecutive 5-year sentence for the firearm offense, 60 F. 3d, at 549.Like the trial court, the Court of Appeals did not read § 2119(2) as setting out an element of an independent offense.2 Id., at 551-554. The Ninth Circuit thus agreed with the Eleventh, see United States v. Williams, 51 F.3d 1004, 1009-1010 (1995), in reasoning that the structure of2 The Ninth Circuit vacated another portion of the District Court's sentencing decision and remanded. United States v. Oliver, 60 F.3d 547, 555-556 (1995). On remand, the District Court reduced petitioner's carjacking sentence to 20 years and his total sentence to 25 years, and the Court of Appeals affirmed. App. 41-43; judgt. order reported at 116 F.3d 1487 (1997).232the statute, particularly the grammatical dependence of the numbered subsections on the first paragraph, demonstrated Congress's understanding that the subsections did not complete the definitions of separate crimes. 60 F. 3d, at 552553. For its view that the subsections provided sentencing factors, the court found additional support in the statute's legislative history. The heading on the subtitle of the bill creating § 2119 was "Enhanced Penalties for Auto Theft," which the court took as indicating that the statute's numbered subsections merely defined sentencing enhancements. I d., at 553. The court also noted several references in the Committee Reports and floor debate on the bill to enhanced penalties for an apparently single carjacking offense. Ibid. Because of features arguably distinguishing this case from Almendarez-Torres v. United States, 523 U. S. 224 (1998), we granted certiorari, 523 U. S. 1045 (1998), and now reverse.IIMuch turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt. See, e. g., Hamling v. United States, 418 U. S. 87, 117 (1974); United States v. Gaudin, 515 U. S. 506, 509510 (1995). Accordingly, some statutes come with the benefit of provisions straightforwardly addressing the distinction between elements and sentencing factors. See McMillan v. Pennsylvania, 477 U. S. 79, 85-86 (1986) (express identification of statutory provision as sentencing factor). Even without any such help, however, § 2119 at first glance has a look to it suggesting that the numbered subsections are only sentencing provisions. It begins with a principal paragraph listing a series of obvious elements (possession of a firearm, taking a motor vehicle, connection with interstate commerce, and so on). That paragraph comes close to standing on its own, followed by sentencing provisions, the first of which,233subsection (1), certainly adds no further element. But the superficial impression loses clarity when one looks at the penalty subsections (2) and (3). These not only provide for steeply higher penalties, but condition them on further facts (injury, death) that seem quite as important as the elements in the principal paragraph (e. g., force and violence, intimidation). It is at best questionable whether the specification of facts sufficient to increase a penalty range by two-thirds, let alone from 15 years to life, was meant to carry none of the process safeguards that elements of an offense bring with them for a defendant's benefit. The "look" of the statute, then, is not a reliable guide to congressional intentions, and the Government accordingly advances two, more subtle structural arguments for its position that the fact specified in subsection (2) is merely a sentencing factor.Like the Court of Appeals, the Government stresses that the statute's numbered subsections do not stand alone in defining offenses, most of whose elements on anyone's reckoning are set out in the statute's opening paragraph. This integrated structure is said to suggest that the statute establishes only a single offense. To the same point, the Government argues that the numbered subsections come after the word "shall," which often divides offense-defining provisions from those that specify sentences. Brief for United States 15-18. While these points are sound enough as far as they go, they are far short of dispositive even on their own terms, whereas they are weakened here by a number of countervailing structural considerations. First, as petitioner notes, Reply Brief for Petitioner 1-2, if the shorter subsection (2) of § 2119 does not stand alone, neither does the section's more voluminous first paragraph. In isolation, it would merely describe some very obnoxious behavior, leaving any reader assuming that it must be a crime, but never being actually told that it is. Only the numbered subsidiary provisions complete the thought. Section 2119 is thus unlike most offense-defining provisions in the federal criminal234code, which genuinely stand on their own grammatical feet thanks to phrases such as "shall be unlawful," see, e. g., 18 U. S. C. § 922(g), "shall be punished," see, e. g., § 511A(a), or "shall be guilty of," see, e. g., 18 U. S. C. § 514 (1994 ed., Supp. II), which draw a provision to its close. Second, as for the significance of the word "shall," although it frequently separates offense-defining clauses from sentencing provisions, it hardly does so invariably. One of the robbery statutes that served as a model for § 2119,3 see 18 U. S. C. §§ 2118(a)(3), (b)(3), for example, places elements of the offense on either side of "shall." And, of course, where the supposedly "elements" side is itself grammatically incomplete (as here), the placement of "shall" is oddly equivocal. Indeed, both the Government and the Courts of Appeals treat the statute perhaps most closely resembling this one, § 1365(a) (consumer tampering), as defining basic and aggravated offenses, one of which is defined in terms of serious bodily injury. See, e. g., United States v. Me ling, 47 F.3d 1546, 1551 (CA9 1995).These clues derived from attention to structure and parsing of wording, like those the dissent holds up to distinguish the carjacking act both from the robbery statutes upon which it was modeled and state aggravated robbery statutes, see post, at 260-262, 263-264 (opinion of KENNEDY, J.), turn out to move us only so far in our effort to infer congressional intent. The text alone does not justify any confident inference. But statutory drafting occurs against a backdrop not merely of structural conventions of varying significance, but of traditional treatment of certain categories of important facts, like the degree ofinjury to victims of crime, in relation to particular crimes. If a given statute is unclear about treating such a fact as element or penalty aggravator, it makes sense to look at what other statutes have done, on the fair assumption that Congress is unlikely to intend any radical departures from past practice without making a point of saying so.3 See n. 4, infra.235We engaged in just such an enquiry this past Term in Almendarez- Torres, where we stressed the history of treating recidivism as a sentencing factor, and noted that, with perhaps one exception, Congress had never clearly made prior conviction an offense element where the offense conduct, in the absence of recidivism, was independently unlawful. 523 U. S., at 230. Here, on the contrary, the search for comparable examples more readily suggests that Congress had separate and aggravated offenses in mind when it employed the scheme of numbered subsections in § 2119. Although Congress has explicitly treated serious bodily injury as a sentencing factor, see, e. g., 18 U. S. C. § 2262(b)(2) (interstate violation of a protection order); § 248(b)(2) (free access to clinic entrances; bodily injury), it has unmistakably identified serious bodily injury as an offense element in any number of statutes, see, e. g., 10 U. S. C. § 928(b)(2) (assault by a member of the armed forces); 18 U. S. C. § 37(a)(1) (violence at international airports); § 1091(a)(2) (genocide). The likelihood that Congress understood injury to be an offense element here follows all the more from the fact that carjacking is a type of robbery, and serious bodily injury has traditionally been treated, both by Congress and by the state legislatures, as defining an element of the offense of aggravated robbery. As the Government acknowledges, Brief for United States 20-21, and n. 8, Congress modeled the federal carjacking statute on several other federal robbery statutes.4 One of them, 18 U. S. C. § 2118 (robbery involving controlled substances), clearly makes causing serious bodily injury an element of the offense. It provides that "[w]hoever takes or attempts to take from the person or presence of another by force or violence or by intimidation any [of certain controlled4 Legislative history identifies three such models. See H. R. Rep.No. 102-851, pt. 1, p. 17 (1992) ("The definition of the offense tracks the language used in other federal robbery statutes (18 U. S. C. §§ 2111, 2113, 2118)"). One of them, 18 U. S. C. §2111 (robbery in areas of federal maritime or territorial jurisdiction), lacks aggravated forms of the offense altogether, and thus is not on point here.236substances] shall ... be fined ... or imprisoned not more than twenty years, or both, if (1) the replacement cost of the [controlled substance] was not less than $500, ... or (3) another person was killed or suffered significant bodily injury as a result of such taking or attempt." § 2118(a)(3); see also § 2118(b)(3).5 A second model, § 2113 (bank robbery), as the Government concedes, see Brief for United States 17, makes related facts of violence, that is, assault and jeopardizing life by using a dangerous weapon, elements defining an aggravated form of that type of robbery. See §§ 2113(d), (e); cf. Almendarez-Torres, supra, at 231 (citing bank robbery statute as example of statute establishing greater and lesser included offenses); McMillan, 477 U. S., at 88 (contrasting § 2113(d) with provision defining a sentencing enhancement).When pressed at oral argument, the Government proved unable to explain why Congress might have chosen one treatment of serious bodily harm or violence in defining two of the three offenses it used as its models for § 2119 and a different treatment in writing the carjacking statute itself, see Tr. of Oral Arg. 41-44, and we are unable to imagine a convincing reason ourselves. We thus think it fair to say that, as in the earlier robbery statutes, so in the carjacking statute, Congress probably intended serious bodily injury to be an element defining an aggravated form of the crime.State practice bolsters the conclusion. Many States use causation of serious bodily injury or harm as an element defining a distinct offense of aggravated robbery. See, e. g., Ala. Code § 13A-8-41(a)(2) (1994) (robbery in the first degree defined in part by the causing of "serious physical injury");5 The dissent, in passing, questions our view that § 2118(a) makes the causing of significant bodily injury an element of the offense defined by that section, see post, at 261-262, but it offers no reason to doubt our reading. Given that § 2118(a) establishes only one maximum punishment, and that it makes eligibility for such punishment contingent on the establishment of at least one of three facts, one of which is the causing of death or significant bodily injury, we think our reading is the only sensible one.237Alaska Stat. Ann. § 11.41.500(a)(3) (1996) (same); Ark. Code Ann. § 5-12-103 (1997) (aggravated robbery; "[i]nflicts or attempts to inflict death or serious physical injury"); Conn. Gen. Stat. § 53a-134(a)(1) (1994) (robbery in the first degree; "[c]auses serious physical injury"); Iowa Code § 711.2 (1993) (robbery in the first degree; "purposely inflicts or attempts to inflict serious injury"); Kan. Stat. Ann. § 21-3427 (1995) (aggravated robbery; "inflicts bodily harm"); Ky. Rev. Stat. Ann. § 515.020(1)(a) (Michie 1990) (robbery in the first degree; "causes physical injury"); N. H. Rev. Stat. Ann. § 636:1(III)(c) (1996) (class A felony of robbery; "[i]nflicted or attempted to inflict death or serious injury"); N. Y. Penal Law § 160.15 (McKinney 1988) (robbery in the first degree; "[c]auses serious physical injury"); Ore. Rev. Stat. § 164.415(1)(c) (1990) (robbery in the first degree; "[c]auses or attempts to cause serious physical injury"); Tex. Penal Code Ann. § 29.03(a)(1) (1994) (aggravated robbery; "causes serious bodily injury"); Utah Code Ann. § 76-6-302(1)(b) (1995) (aggravated robbery; "causes serious bodily injury"); Wash. Rev. Code § 9A.56.200(1)(c) (1994) (robbery in the first degree; "[i]nflicts bodily injury"). While the state practice is not, admittedly, direct authority for reading the federal carjacking statute, it does show that in treating serious bodily injury as an element, Congress would have been treading a well-worn path.Despite these indications and the equivocal structural clues, the Government suggests that a 1996 amendment supports its reading of the carjacking statute as previously enacted. In the Carjacking Correction Act of 1996, 110 Stat. 3020, Congress provided that the term "serious bodily injury" in subsection (2) should include sexual abuse and aggravated sexual abuse as defined in §§ 2241 and 2242. The Government points to several statements in the 1996 amendment's legislative history in which subsection (2) is described as providing a "penalty enhancement," see, e. g., H. R. Rep. No. 104-787, pp. 2, 3 (1996), as showing that subsection (2)238defines a sentencing factor. Even those of us disposed to treat legislative history as authority, however, find the quoted statements unimpressive. Assuming that "penalty enhancement" was meant to be synonymous with "sentencing factor," the legislative history also contains contrary indications in some of the statements made by the 1996 amendment's sponsors, suggesting an assumption that subsection (2) established an element or elements that had to be proven at trial. See 142 Congo Rec. 19769 (1996) (statement of Sen. Biden) ("[T]he defendant had been convicted of raping the woman" (emphasis added)). This hardly seems the occasion to doubt that "subsequent legislative history is a 'hazardous basis for inferring the intent of an earlier' Congress." Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633,650 (1990) (quoting United States v. Price, 361 U. S. 304, 313 (1960)). Indeed, our leeriness of relying on hindsight expressed in legislative history is only confirmed by recognizing what oddity there would be in defining the fact of serious bodily injury by reference to a distinct offense with its own offense elements, like sexual abuse, while at the same time assuming that the fact so defined is merely a sentencing consideration.Nor do we think the legislative history that attracted the Court of Appeals is any more helpful to the Government. See 60 F. 3d, at 553. The Committee Reports and floor debate on the statute refer to its augmentation of the criminal law in the singular, not the plural, speaking only of a new federal "crime" or "offense" of carjacking in the singular. See, e. g., H. R. Rep. No. 102-851, pt. 1, p. 17 (1992); 138 Congo Rec. 32500 (1992) (statement of Rep. Dingell). But what we make of the singular-plural distinction turns on the circumstances. Characterizing a cluster of provisions as enacting something to be described by the singular terms "offense" or "crime" would signify a good deal if the speakers or writers were addressing a point on which the distinction mattered. That is not, however, what they were doing in the239passages cited, where those references couched in the singular did not occur in discussions of the issue of offense elements versus sentencing factors that we confront here. So, we think their significance is slight. On the subject of legislative history, we should add that we see nothing favorable to the Government in the fact that the statement in the House Report explaining that the drafters of the carjacking statute drew on the examples of other federal robbery statutes referred to an early version of the carjacking statute when it lacked any reference to the aggravated forms of the offense now defined by subsections (2) and (3). See H. R. Rep. No. 102-851, supra, at 17. As against the suggestion that Congress looked to the earlier robbery statutes only when it settled on the language contained in the carjacking statute's first paragraph, we think it would have been strange for Congress to find guidance in the other robbery statutes at the beginning of the legislative process and then just forget about them. As the Government itself suggests in a somewhat different context, there is no reason to think that Congress "might have abandoned [those] ready federal models" in developing the more fully elaborated version of the statute that it ultimately adopted. Brief for United States 21, n. 8.IIIWhile we think the fairest reading of § 2119 treats the fact of serious bodily harm as an element, not a mere enhancement, we recognize the possibility of the other view. Any doubt that might be prompted by the arguments for that other reading should, however, be resolved against it under the rule, repeatedly affirmed, that "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909); see also United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916). It is "out240of respect for Congress, which we assume legislates in the light of constitutional limitations," Rust v. Sullivan, 500 U. S. 173, 191 (1991), that we adhere to this principle, which "has for so long been applied by this Court that it is beyond debate." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988); see also United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994).As the Government would have us construe it, the statute would be open to constitutional doubt in light of a series of cases over the past quarter century, dealing with due process and the guarantee of trial by jury. The first of these, Mullaney v. Wilbur, 421 U. S. 684 (1975), reviewed a Maine murder statute providing that the element of malice (in the sense of want of provocation, Patterson v. New York, 432 U. S. 197, 215 (1977)) would be presumed upon proof of intent to kill resulting in death, subject to a defendant's right of rebuttal that he had acted on provocation in the heat of passion, which would reduce the offense to manslaughter. Mullaney, supra, at 686, and n. 3. The challenge was that the presumption subject to rebuttal relieved the State of its due process burden to prove every element of the crime beyond a reasonable doubt, as explained in In re Winship, 397 U. S. 358, 364 (1970). The State replied that the challenge was merely formalistic, that the State's law in effect established a generic crime of felonious homicide, Mullaney, supra, at 688, 696-697, on which view the fact subject to presumption and rebuttal would have gone simply to sentence, and Winship would not have been controlling. But the Court declined to accord the State this license to recharacterize the issue, in part because the State's reading left its statute at odds both with the centuries-old common law recognition of malice as the fact distinguishing murder from manslaughter and with the widely held modern view that heat of passion, once raised by the evidence, was a subject of the State's burden, 421 U. S., at 692-696, and in part because an unlimited241choice over characterizing a stated fact as an element would leave the State substantially free to manipulate its way out of Winship, 421 U. S., at 698.Two Terms later, in Patterson v. New York, supra, the Court ruled on a Winship challenge to a scheme defining murder as causing death with intent, subject to an affirmative defense of extreme emotional disturbance for which there was a reasonable explanation. 432 U. S., at 205-206. Unlike Maine's law, New York's raised no presumption of malice; malice was omitted from the elements of murder. Patterson contended that because the presence or absence of an extreme emotional disturbance affected the severity of sentence, Winship and Mullaney required the State to prove the absence of that fact beyond a reasonable doubt. We rejected this argument and "decline[d] to adopt as a constitutional imperative ... that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused." 432 U. S., at 210. We identified the use of a presumption to establish an essential ingredient of the offense as the curse of the Maine law, because the "shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause." Id., at 215. With one caveat, therefore, Patterson left the States free to choose the elements that define their crimes, without any impediment from Winship. The caveat was a stated recognition of some limit upon state authority to reallocate the traditional burden of proof, 432 U. S., at 210, which in that case was easily satisfied by the fact that "at common law the burden of proving" the mitigating circumstances of severe emotional disturbance "rested on the defendant." Id., at 202; see also id., at 211; Mullaney, supra, at 693-694. While a narrow reading of this limit might have been no more than a ban on using presumptions to reduce elements to the point of being nominal, a broader reading was equally open, that the State242lacked the discretion to omit "traditional" elements from the definition of crimes and instead to require the accused to disprove such elements.These cases about allocation of burden, with their implications about the charging obligation and the requisite quantum of proof, were succeeded by McMillan v. Pennsylvania, 477 U. S. 79 (1986), in which the Winship issue rose from a provision that a judge's finding (by a preponderance) of visible possession of a firearm would require a mandatory minimum sentence for certain felonies, but a minimum that fell within the sentencing ranges otherwise prescribed. Although the Court rejected the petitioner's claim insofar as it would have required a finding beyond a reasonable doubt of any fact upon which a mandatory minimum sentence depended (and rejected certain subsidiary arguments as well), it did observe that the result might have been different if proof of visible possession had exposed a defendant to a sentence beyond the maximum that the statute otherwise set without reference to that fact. 477 U. S., at 88.McMillan is notable not only for acknowledging the question of due process requirements for factfinding that raises a sentencing range, but also for disposing of a claim that the Pennsylvania law violated the Sixth Amendment right to jury trial as well. The petitioner's basic argument was for a right to jury determination of all "ultimate facts concerning the offense committed," id., at 93, and although the Court disposed of this by reference back to its due process discussion, that discussion had broached the potential constitutional significance of factfinding that raised the sentencing ceiling.McMillan, then, recognizes a question under both the Due Process Clause of the Fourteenth Amendment and the jury guarantee of the Sixth: when a jury determination has not been waived, may judicial factfinding by a preponderance support the application of a provision that increases the potential severity of the penalty for a variant of a given crime?243The seriousness of the due process issue is evident from Mullaney's insistence that a State cannot manipulate its way out of Winship, and from Patterson's recognition of a limit on state authority to reallocate traditional burdens of proof; the substantiality of the jury claim is evident from the practical implications of assuming Sixth Amendment indifference to treating a fact that sets the sentencing range as a sentencing factor, not an element.6The terms of the carjacking statute illustrate very well what is at stake. If serious bodily injury were merely a sentencing factor under § 2119(2) (increasing the authorized penalty by two thirds, to 25 years), then death would presumably be nothing more than a sentencing factor under subsection (3) (increasing the penalty range to life). If a potential penalty might rise from 15 years to life on a nonjury determination, the jury's role would correspondingly shrink6 The dissent repeatedly chides us for failing to state precisely enough the principle animating our view that the carjacking statute, as construed by the Government, may violate the Constitution. See post, at 254, 266, 277. The preceding paragraph in the text expresses that principle plainly enough, and we restate it here: under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because our prior cases suggest rather than establish this principle, our concern about the Government's reading of the statute rises only to the level of doubt, not certainty.Contrary to the dissent's suggestion, the constitutional proposition that drives our concern in no way "call[s] into question the principle that the definition of the elements of a criminal offense is entrusted to the legislature." Post, at 270 (internal quotation marks omitted). The constitutional guarantees that give rise to our concern in no way restrict the ability of legislatures to identify the conduct they wish to characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability. The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof.244from the significance usually carried by determinations of guilt to the relative importance of low-level gatekeeping: in some cases, a jury finding of fact necessary for a maximum is-year sentence would merely open the door to a judicial finding sufficient for life imprisonment. It is therefore no trivial question to ask whether recognizing an unlimited legislative power to authorize determinations setting ultimate sentencing limits without a jury would invite erosion of the jury's function to a point against which a line must necessarily be drawn.The question might well be less serious than the constitutional doubt rule requires if the history bearing on the Framers' understanding of the Sixth Amendment principle demonstrated an accepted tolerance for exclusively judicial factfinding to peg penalty limits. But such is not the history. To be sure, the scholarship of which we are aware does not show that a question exactly like this one was ever raised and resolved in the period before the framing. On the other hand, several studies demonstrate that on a generallevel the tension between jury powers and powers exclusively judicial would likely have been very much to the fore in the Framers' conception of the jury right.The fact that we point to no statutes of the earlier time exemplifying the distinction between elements and facts that elevate sentencing ranges is unsurprising, given the breadth of judicial discretion over fines and corporal punishment in less important, misdemeanor cases, see, e. g., J. Baker, Introduction to English Legal History 584 (3d ed. 1990); 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (hereinafter Blackstone); Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 350 (1982), and the norm of fixed sentences in cases of felony, see Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700-1900, pp. 36-37 (A. Schioppa ed.2451987); 4 Blackstone 238-239; A. Scott, Criminal Law in Colonial Virginia 27-28, 103-106 (1930).Even in this system, however, competition developed between judge and jury over the real significance of their respective roles. The potential or inevitable severity of sentences was indirectly checked by juries' assertions of a mitigating power when the circumstances of a prosecution pointed to political abuse of the criminal process or endowed a criminal conviction with particularly sanguinary consequences. This power to thwart Parliament and Crown took the form not only of flat-out acquittals in the face of guilt but of what today we would call verdicts of guilty to lesser included offenses, manifestations of what Blackstone described as "pious perjury" on the jurors' part. 4 Blackstone 238-239.7Countervailing measures to diminish the juries' power were naturally forthcoming, with ensuing responses both in the mother country and in the Colonies that validate, though they do not answer, the question that the Government's position here would raise. One such move on the Government's side was a parliamentary practice of barring the right to jury trial when defining new, statutory offenses. See, e. g., Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917,925-930 (1926); 4 Blackstone 277-279. This practice extended to violations of the Stamp Act and recurred in statutes regulating imperial trade, see C. Ubbelohde, ViceAdmiralty Courts and the American Revolution 16-21, 74-80 (1960); Wroth, The Massachusetts Vice Admiralty Court, in7For English practice, see, e. g., Langbein, Shaping the EighteenthCentury Criminal Trial, 50 U. Chi. L. Rev. 1, 22, 52-54 (1983); Green, The English Criminal Trial Jury, in The Trial Jury in England, France, Germany 1700-1900, pp. 41, 48-49 (A. Schioppa ed. 1987). For Colonial American practice, see, e. g., J. Goebell & T. Naughton, Law Enforcement in Colonial New York 673-674 (1944); State v. Bennet, 3 Brevard 515 (S. C. 1815).246Law and Authority in Colonial America 32, 50 (G. Billias ed. 1965), and was one of the occasions for the protest in the Declaration of Independence against deprivation of the benefit of jury trial, see P. Maier, American Scripture 118 (1997). But even before the Declaration, a less revolutionary voice than the Continental Congress had protested against the legislative practice, in words widely read in America. The use of nonjury proceedings had "of late been so far extended," Blackstone warned in the 1760's, "as, if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury." 4 Blackstone 278. Identifying trial by jury as "the grand bulwark" of English liberties, Blackstone contended that other liberties would remain secure only "so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters." Id., at 342-344.A second response to the juries' power to control outcomes occurred in attempts to confine jury determinations in libel cases to findings of fact, leaving it to the judges to apply the law and, thus, to limit the opportunities for juror nullification. Ultimately, of course, the attempt failed, the juries' victory being embodied in Fox's Libel Act in Britain, see generally T. Green, Verdict According to Conscience 318-355 (1985), and exemplified in John Peter Zenger's acquittal in the Colonies, see, e. g., J. Rakove, Original Meanings 300-302 (1996). It is significant here not merely that the denouement of the restrictive efforts left the juries in control, but247that the focus of those efforts was principally the juries' control over the ultimate verdict, applying law to fact (or "finding" the law, see, e. g., id., at 301), and not the factfinding role itself.8 There was apparently some accepted understanding at the time that the finding of facts was simply too sacred a jury prerogative to be trifled with in prosecution for such a significant and traditional offense in the commonlaw courts.9 That this history had to be in the minds of the Framers is beyond cavil. According to one authority, the leading account of Zenger's trial was, with one possible exception, "the most widely known source of libertarian thought in England and America during the eighteenth century." L. Levy, Freedom of Speech and Press in Early American History 133 (1963). It is just as much beyond8 The principle that the jury were the judges of fact and the judges the deciders of law was stated as an established principle as early as 1628 by Coke. See 1 E. Coke, Institutes of the Laws of England 155b (1628) ("ad questionem facti non respondent judices; ad questionem juris non respondent juratores"). See also Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany, supra, at 34, n. 60. Even the traditional, juryrestrictive view of libel law recognized the jury's authority over matters of fact. See, e. g., King v. Francklin, 17 How. St. Tr. 626, 672 (K. B. 1731) ("These [publications and the words having the meaning ascribed to them] are the two matters of fact that come under your consideration; and of which you are proper judges. But then there is a third thing, to wit, Whether these defamatory expressions amount to a libel or not? This does not belong to the office of the jury, but to the office of the Court; because it is a matter of law, and not of fact; and of which the Court are the only proper judges"). Thus most participants in the struggle over jury autonomy in seditious libel cases viewed the debate as concerned with the extent of the jury's law-finding power, not its unquestioned role as the determiner of factual issues. See T. Green, Verdict According to Conscience 318-319 (1985). Some influential jurists suggested that it might also be seen as a struggle over the jury's right to find a particular fact, namely, the required criminal intent. See 10 W. Holdsworth, History of English Law 680-683 (1938).9 See 4 Blackstone 354 (jurors could choose to stop at special verdicts if they wished).248question that Americans of the period perfectly well understood the lesson that the jury right could be lost not only by gross denial, but by erosion. See supra, at 245-247. One contributor to the ratification debates, for example, commenting on the jury trial guarantee in Art. III, § 2, echoed Blackstone in warning of the need "to guard with the most jealous circumspection against the introduction of new, and arbitrary methods of trial, which, under a variety of plausible pretenses, may in time, imperceptibly undermine this best preservative of LIBERTY." A [New Hampshire] Farmer, No.3, June 6, 1788, quoted in The Complete Bill of Rights 477 (N. Cogan ed. 1997).In sum, there is reason to suppose that in the present circumstances, however peculiar their details to our time and place, the relative diminution of the jury's significance would merit Sixth Amendment concern. It is not, of course, that anyone today would claim that every fact with a bearing on sentencing must be found by a jury; we have resolved that general issue and have no intention of questioning its resolution. The point is simply that diminishment of the jury's significance by removing control over facts determining a statutory sentencing range would resonate with the claims of earlier controversies, to raise a genuine Sixth Amendment issue not yet settled.Our position that the Sixth Amendment and due process issues are by no means by the boards calls for a word about several cases that followed McMillan. Almendarez-Torres v. United States, 523 U. S. 224 (1998), decided last Term, stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise holding being that recidivism increasing the maximum penalty need not be so charged. But the case is not dispositive of the question here, not merely because we are concerned with the Sixth Amendment right to jury trial and not alone the rights to indictment and notice as claimed by249Almendarez-Torres, but because the holding last Term rested in substantial part on the tradition of regarding recidivism as a sentencing factor, not as an element to be set out in the indictment. The Court's repeated emphasis on the distinctive significance of recidivism leaves no question that the Court regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing. See id., at 230 ("At the outset, we note that the relevant statutory subject matter is recidivism"); ibid. ("With recidivism as the subject matter in mind, we turn to the statute's language"); id., at 243 ("First, the sentencing factor at issue here-recidivismis a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence"); id., at 245 (distinguishing McMillan "in light of the particular sentencing factor at issue in this case-recidivism"). One basis for that possible constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense, and certainly unlike the factor before us in this case, a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees. Almendarez-Torres cannot, then, be read to resolve the due process and Sixth Amendment questions implicated by reading the carjacking statute as the Government urges.1010 The dissent insists that Almendarez- Torres "controls the question before us," post, at 266, but in substantiating that assertion, it tellingly relies more heavily on the claims of the Almendarez-Torres dissenters than on the statements of the Almendarez-Torres majority. Neither source bears out the current dissent's conclusion. If, as the dissenters in this case suggest, Almendarez-Torres did not turn on the particular "sentencing factor at issue" there, 523 U. S., at 243, but instead stood for the broad proposition that any fact increasing the maximum permissible punishment may be determined by a judge by a preponderance, it is a mystery why the Almendarez-Torres majority engaged in so much discussion of recidivism, or why, at the crux of its constitutional discussion, it turned first to discuss250Nor is the question resolved by a series of three cases dealing with factfinding in capital sentencing. The first of these, Spaziano v. Florida, 468 U. S. 447 (1984), contains no discussion of the sort of factfinding before us in this case. It addressed the argument that capital sentencing must be a jury task and rejected that position on the ground that capital sentencing is like sentencing in other cases, being a choice of the appropriate disposition, as against an alternative or a range of alternatives. Id., at 459.Spaziano was followed in a few years by Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam), holding that the determination of death-qualifying aggravating facts could be entrusted to a judge, following a verdict of guilty of murder and a jury recommendation of death, without violating the Sixth Amendment's jury clause. Although citing Spaziano as authority, 490 U. S., at 639-640, Hildwin was the first case to deal expressly with factfinding necessary to authorize imposition of the more severe of alternative sentences, and thus arguably comparable to factfinding necessary to expand the sentencing range available on conviction of a lesser crime than murder. Even if we were satisfied that the analogy was sound, Hildwin could not drive the answer to the Sixth Amendment question raised by the Government's position here. In Hildwin, a jury made a sentencing recommendation of death, thus necessarily engaging in the factfinding required for imposition of a higher sentence, that is, the de-the "tradition" of recidivism's treatment as a sentencing factor, ibid., or why it never announced the unqualified holding that today's dissenters claim to find in it. Admittedly, as the dissent here notes, the dissenters in Almendarez-Torres criticized the majority for what they considered the majority's unsupportable restraint in restricting their holding to recidivism. But that very criticism would have lacked its target if the Almendarez-Torres majority had not so doggedly refrained from endorsing the general principle the dissent in this case now attributes to them. The majority and the dissenters in Almendarez-Torres disagreed over the legitimacy of the Court's decision to restrict its holding to recidivism, but both sides agreed that the Court had done just that.251termination that at least one aggravating factor had been proved. Hildwin, therefore, can hardly be read as resolving the issue discussed here, as the reasoning in Walton v. Arizona, 497 U. S. 639 (1990), confirms.Walton dealt with an argument only slightly less expansive than the one in Spaziano, that every finding underlying a sentencing determination must be made by a jury. Although the Court's rejection of that position cited Hildwin, it characterized the nature of capital sentencing by quoting from Poland v. Arizona, 476 U. S. 147, 156 (1986). See 497 U. S., at 648. There, the Court described statutory specifications of aggravating circumstances in capital sentencing as "standards to guide the ... choice between the alternative verdicts of death and life imprisonment." Ibid. (quoting Poland, supra, at 156 (internal quotation marks omitted)). The Court thus characterized the finding of aggravating facts falling within the traditional scope of capital sentencing as a choice between a greater and a lesser penalty, not as a process of raising the ceiling of the sentencing range available. We are frank to say that we emphasize this careful reading of Walton's rationale because the question implicated by the Government's position on the meaning of § 2119(2) is too significant to be decided without being squarely faced.In sum, the Government's view would raise serious constitutional questions on which precedent is not dispositive. Any doubt on the issue of statutory construction is hence to be resolved in favor of avoiding those questions.u This is11 In tones of alarm, the dissent suggests, see post, at 254, 271, that our decision will unsettle the efforts of many States to bring greater consistency to their sentencing practices through provisions for determinate sentences and statutorily or administratively established guidelines governing sentencing decisions. The dissent's concern is misplaced for several reasons. Most immediately, our decision today does not announce any new principle of constitutional law, but merely interprets a particular federal statute in light of a set of constitutional concerns that have emerged through a series of our decisions over the past quarter century. But even252done by construing § 2119 as establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict. The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered | OCTOBER TERM, 1998SyllabusJONES v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 97-6203. Argued October 5, 1998-Decided March 24,1999Petitioner was charged with, inter alia, carjacking, in violation of 18 U. S. C. § 2119, which at the time provided, as relevant here, that a person possessing a firearm who "takes a motor vehicle ... from the person or presence of another by force and violence or by intimidation ... shall-(l) be ... imprisoned not more than 15 years ... , (2) if serious bodily injury ... results, be ... imprisoned not more than 25 years ... , and (3) if death results, be ... imprisoned for any number of years up to life .... " The indictment made no reference to §2119's numbered subsections and charged none of the facts mentioned in the latter two. Petitioner was told at the arraignment that he faced a maximum 15-year sentence for carjacking, and the jury instructions at his trial defined that offense by reference solely to § 2119(1). After he was found guilty, however, the District Court imposed a 25-year sentence on the carjacking charge because one victim suffered serious bodily injury. The court rejected petitioner's objection that serious bodily injury was an element of the offense, which had been neither pleaded in the indictment nor proven before the jury. In affirming, the Ninth Circuit agreed that § 2119(2) set out a sentencing factor, not an element of an independent offense.Held: Section 2119 establishes three separate offenses by the specification of elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict. Pp. 232-252.(a) The superficial impression that § 2119's subsections are only sentencing provisions loses clarity when one looks at subsections (2) and (3), which not only provide for steeply higher penalties, but condition them on further facts (injury, death) that seem quite as important as the elements in the principal paragraph (force, violence, intimidation). The Government stresses that the numbered subsections do not stand alone in defining offenses, most of whose elements are set out in the statute's opening paragraph, and that this integrated structure suggests that the statute establishes only a single offense. The Government also argues that the numbered subsections come after the word "shall," which often divides offense-defining provisions from those that specify sentences. A number of countervailing structural considerations, how-228Syllabusever, weaken those points. First, if the shorter subsection (2) does not stand alone, neither does § 2119's more voluminous first paragraph, which by itself would merely describe some obnoxious behavior, never actually telling the reader that it is a crime. Only the numbered subsections complete the thought. Second, "shall" does not invariably separate offense-defining clauses from sentencing provisions. Section 2119's text alone does not justify any confident inference. Statutory drafting, however, occurs against a backdrop not merely of structural conventions of varying significance, but of traditional treatment of certain categories of important facts, like degree of injury to victims, in relation to particular crimes. If a statute is unclear about whether it treats a fact as element or penalty aggravator, it makes sense to look at what other statutes have done, since Congress is unlikely to intend any radical departures from past practice without making a point of saying so. See Almendarez-Torres v. United States, 523 U. S. 224, 230. Here, a search for comparable examples suggests that Congress had separate and aggravated offenses in mind when it employed numbered subsections in § 2119, for it unmistakably identified serious bodily injury or related facts of violence as an offense element in several other federal statutes, including two of the three robbery statutes on which it modeled the carjacking statute. This conclusion is bolstered by the States' practice of treating serious bodily injury as an element defining a distinct offense of aggravated robbery. Neither a 1996 amendment to the statute nor the statute's legislative history supports the Government's reading. Pp. 232-239.(b) The Government's construction of the statute would raise a serious constitutional question under the Fifth Amendment's Due Process Clause and the Sixth Amendment's notice and jury trial guarantees: when a jury determination has not been waived, may judicial factfinding by a preponderance support the application of a provision that increases the potential severity of the penalty for a variant of a given crime? Although this question has been recognized in a series of cases over the past quarter century, see, e. g., Mullaney v. Wilbur, 421 U. S. 684, it has not been resolved by those cases, see, e. g., Almendarez-Torres v. United States, supra. Any doubt on the issue of statutory construction should thus be resolved in favor of avoiding the question, under the rule that, "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [this Court's] duty is to adopt the latter." United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408. pp. 239-252.116 F.3d 1487, reversed and remanded.229Full Text of Opinion |
347 | 1995_94-1809 | (e) The subject-matter jurisdiction exception to full faith and credit, relied on by the Ninth Circuit in this case, is inapposite here, where the rendering court had subject-matter jurisdiction over the underlying suit and the defendants. pp. 386-387.50 F.3d 644, reversed and remanded.THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined, and in which STEVENS, J., joined as to Parts I, II -A, and II -C. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 387. GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined, and in which SOUTER, J., joined as to Part II-B, post, p. 388.Barry R. Ostrager argued the cause for petitioners. With him on the briefs was Geoffrey C. Hazard, Jr.Henry Paul Monaghan argued the cause for respondents.With him on the brief were Harold Edgar, Roger W Kirby, and Irving Malchman. *JUSTICE THOMAS delivered the opinion of the Court.This case presents the question whether a federal court may withhold full faith and credit from a state-court judgment approving a class-action settlement simply because the settlement releases claims within the exclusive jurisdiction of the federal courts. The answer is no. Absent a partial repeal of the Full Faith and Credit Act, 28 U. S. C. § 1738, by another federal statute, a federal court must give the judgment the same effect that it would have in the courts of the State in which it was rendered.IIn 1990, petitioner Matsushita Electric Industrial Co. made a tender offer for the common stock of MCA, Inc., a* Daniel J. Popeo and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal.Thaddeus Holt filed a brief for C. L. Grimes as amicus curiae urging affirmance.370Delaware corporation. The tender offer not only resulted in Matsushita's acquisition of MCA, but also precipitated two lawsuits on behalf of the holders of MCA's common stock. First, a class action was filed in the Delaware Court of Chancery against MCA and its directors for breach of fiduciary duty in failing to maximize shareholder value. The complaint was later amended to state additional claims against MCA's directors for, inter alia, waste of corporate assets by exposing MCA to liability under the federal securities laws. In addition, Matsushita was added as a defendant and was accused of conspiring with MCA's directors to violate Delaware law. The Delaware suit was based purely on statelaw claims.While the state class action was pending, the instant suit was filed in Federal District Court in California. The complaint named Matsushita as a defendant and alleged that Matsushita's tender offer violated Securities and Exchange Commission (SEC) Rules 10b-13 and 14d-10.1 These Rules were created by the SEC pursuant to the 1968 Williams Act Amendments to the Securities Exchange Act of 1934 (Exchange Act), 48 Stat. 881, as amended, 15 U. S. C. § 78a et seq. Section 27 of the Exchange Act confers exclusive jurisdiction upon the federal courts for suits brought to enforce the Act or rules and regulations promulgated thereunder. See 15 U. S. C. § 78aa. The District Court declined to certify the class, entered summary judgment for Matsushita, and dismissed the case. The plaintiffs appealed to the Court of Appeals for the Ninth Circuit.After the federal plaintiffs filed their notice of appeal but before the Ninth Circuit handed down a decision, the parties1 We express no opinion in this case on the existence of a private cause of action under §§ 14(d)(6) and (7) of the Securities Exchange Act of 1934, 15 U. S. C. §§ 78n(d)(6) and (7), the statutory authority for Rule 14d-l0.371to the Delaware suit negotiated a settlement.2 In exchange for a global release of all claims arising out of the Matsushita-MCA acquisition, the defendants would deposit $2 million into a settlement fund to be distributed pro rata to the members of the class. As required by Delaware Chancery Rule 23, which is modeled on Federal Rule of Civil Procedure 23, the Chancery Court certified the class for purposes of settlement and approved a notice of the proposed settlement. The notice informed the class members of their right to request exclusion from the settlement class and to appear and present argument at a scheduled hearing to determine the fairness of the settlement. In particular, the notice stated that "[b]y filing a valid Request for Exclusion, a member of the Settlement Class will not be precluded by the Settlement from individually seeking to pursue the claims alleged in the ... California Federal Actions, ... or any other claim relating to the events at issue in the Delaware Actions." App. to Pet. for Cert. 96a. Two such notices were mailed to the class members and the notice was also published in the national edition of the Wall Street Journal. The Chancery Court then held a hearing. After argument from several objectors, the court found the class representation adequate and the settlement fair.The order and final judgment of the Chancery Court incorporated the terms of the settlement agreement, providing:"All claims, rights and causes of action (state or federal, including but not limited to claims arising under the federal securities law, any rules or regulations promulgated thereunder, or otherwise), whether known or unknown that are, could have been or might in the future be asserted by any of the plaintiffs or any member of the Settlement Class (other than those who have val-2 A previous settlement was rejected by the Court of Chancery as unfair to the class. See In re MeA, Inc. Shareholders Litigation, 598 A. 2d 687 (1991).372idly requested exclusion therefrom), ... in connection with or that arise now or hereafter out of the Merger Agreement, the Tender Offer, the Distribution Agreement, the Capital Contribution Agreement, the employee compensation arrangements, the Tender Agreements, the Initial Proposed Settlement, this Settlement ... and including without limitation the claims asserted in the California Federal Actions ... are hereby compromised, settled, released and discharged with prejudice by virtue of the proceedings herein and this Order and Final Judgment." In re MCA, Inc. Shareholders Litigation, C. A. No. 11740 (Feb. 22, 1993), reprinted in App. to Pet. for Cert. 74a-75a (emphasis added).The judgment also stated that the notice met all the requirements of due process. The Delaware Supreme Court affirmed. In re MCA, Inc., Shareholders Litigation, 633 A. 2d 370 (1993) (judgt. order).Respondents were members of both the state and federal plaintiff classes. Following issuance of the notice of proposed settlement of the Delaware litigation, respondents neither opted out of the settlement class nor appeared at the hearing to contest the settlement or the representation of the class. On appeal in the Ninth Circuit, petitioner Matsushita invoked the Delaware judgment as a bar to further prosecution of that action under the Full Faith and Credit Act, 28 U. S. C. § 1738.The Ninth Circuit rejected petitioner's argument, ruling that § 1738 did not apply. Epstein v. MCA, Inc., 50 F.3d 644, 661-666 (1995). Instead, the Court of Appeals fashioned a test under which the preclusive force of a state-court settlement judgment is limited to those claims that "could ... have been extinguished by the issue preclusive effect of an adjudication of the state claims." Id., at 665. The lower courts have taken varying approaches to determining the preclusive effect of a state-court judgment, entered in a class373or derivative action, that provides for the release of exclusively federal claims.3 We granted certiorari to clarify this important area of federal law. 515 U. S. 1187 (1995).IIThe Full Faith and Credit Act mandates that the "judicial proceedings" of any State "shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken." 28 U. S. C. § 1738. The Act thus directs all courts to treat a state-court judgment with the same respect that it would receive in the courts of the rendering State. Federal courts may not "employ their own rules ... in determining the effect of state judgments," but must "accept the rules chosen by the State from which the judgment is taken." Kremer v. Chemical Constr. Corp., 456 U. S. 461, 481-482 (1982). Because the Court of Appeals failed to follow the dictates of the Act, we reverse.AThe state-court judgment in this case differs in two respects from the judgments that we have previously considered in our cases under the Full Faith and Credit Act. As respondents and the Court of Appeals stressed, the judgment was the product of a class action and incorporated a settlement agreement releasing claims within the exclusive jurisdiction of the federal courts. Though respondents urge "the irrelevance of section 1738 to this litigation," Brief for Respondents 25, we do not think that either of these features exempts the judgment from the operation of § 1738.That the judgment at issue is the result of a class action, rather than a suit brought by an individual, does not under-3 Compare the decision below with Grimes v. Vitalink Communications Corp., 17 F.3d 1553 (CA3), cert. denied, 513 U. S. 986 (1994); Nottingham Partners v. Trans-Lux Corp., 925 F.2d 29 (CA1 1991); and Abramson v. Pennwood Investment Corp., 392 F.2d 759 (CA2 1968).374mine the initial applicability of § 1738. The judgment of a state court in a class action is plainly the product of a "judicial proceeding" within the meaning of § 1738. Cf. McDonald v. West Branch, 466 U. S. 284, 287-288 (1984) (holding that § 1738 does not apply to arbitration awards because arbitration is not a "judicial proceeding"). Therefore, a judgment entered in a class action, like any other judgment entered in a state judicial proceeding, is presumptively entitled to full faith and credit under the express terms of the Act.Further, § 1738 is not irrelevant simply because the judgment in question might work to bar the litigation of exclusively federal claims. Our decision in Marrese v. American Academy of Orthopaedic Surgeons, 470 U. S. 373 (1985), made clear that where § 1738 is raised as a defense in a subsequent suit, the fact that an allegedly precluded "claim is within the exclusive jurisdiction of the federal courts does not necessarily make § 1738 inapplicable." Id., at 380 (emphasis added). In so holding, we relied primarily on Kremer v. Chemical Constr. Corp., supra, which held, without deciding whether claims under Title VII of the Civil Rights Act of 1964 are exclusively federal, that state-court proceedings may be issue preclusive in Title VII suits in federal court. Kremer, we said, "implies that absent an exception to § 1738, state law determines at least the ... preclusive effect of a prior state judgment in a subsequent action involving a claim within the exclusive jurisdiction of the federal courts." Marrese, 470 U. S., at 381. Accordingly, we decided that "a state court judgment may in some circumstances have preclusive effect in a subsequent action within the exclusive jurisdiction of the federal courts." Id., at 380.In Marrese, we discussed Nash County Bd. of Ed. v. Biltmore Co., 640 F.2d 484 (CA4), cert. denied, 454 U. S. 878 (1981), a case that concerned a state-court settlement judgment. In Nash, the question was whether the judgment, which approved the settlement of state antitrust claims, prevented the litigation of exclusively federal antitrust claims.375See 470 U. S., at 382, n. 2. We suggested that the approach outlined in Marrese would also apply in cases like Nash that involve judgments upon settlement: that is, § 1738 would control at the outset. See 470 U. S., at 382, n. 2. In accord with these precedents, we conclude that § 1738 is generally applicable in cases in which the state-court judgment at issue incorporates a class-action settlement releasing claims solely within the jurisdiction of the federal courts.BMarrese provides the analytical framework for deciding whether the Delaware court's judgment precludes this exclusively federal action. When faced with a state-court judgment relating to an exclusively federal claim, a federal court must first look to the law of the rendering State to ascertain the effect of the judgment. See id., at 381-382. If state law indicates that the particular claim or issue would be barred from litigation in a court of that State, then the federal court must next decide whether, "as an exception to § 1738," it "should refuse to give preclusive effect to [the] state court judgment." Id., at 383. See also Migra v. Warren City School Dist. Bd. of Ed., 465 U. S. 75, 81 (1984) ("[I]n the absence of federal law modifying the operation of § 1738, the preclusive effect in federal court of [a] state-court judgment is determined by [state] law").1We observed in Marrese that the inquiry into state law would not always yield a direct answer. Usually, "a state court will not have occasion to address the specific question whether a state judgment has issue or claim preclusive effect in a later action that can be brought only in federal court." 470 U. S., at 381-382. Where a judicially approved settlement is under consideration, a federal court may consequently find guidance from general state law on the preclusive force of settlement judgments. See, e. g., id., at376382-383, n. 2 (observing in connection with Nash that "[North Carolina] law gives preclusive effect to consent judgment[s]"). Here, in addition to providing rules regarding the preclusive force of class-action settlement judgments in subsequent suits in state court, the Delaware courts have also spoken to the particular effect of such judgments in federal court.Delaware has traditionally treated the impact of settlement judgments on subsequent litigation in state court as a question of claim preclusion. Early cases suggested that Delaware courts would not afford claim preclusive effect to a settlement releasing claims that could not have been presented in the trial court. See Ezzes v. Ackerman, 234 A. 2d 444, 445-446 (Del. 1967) ("[A] judgment entered either after trial on the merits or upon an approved settlement is res judicata and bars subsequent suit on the same claim .... [T]he defense of res judicata ... is available if the pleadings framing the issues in the first action would have permitted the raising of the issue sought to be raised in the second action, and if the facts were known, or could have been known to the plaintiff in the second action at the time of the first action"). As the Court of Chancery has perceived, however, "the Ezzes inquiry [was] modified in regard to class actions," In re Union Square Associates Securities Litigation, C. A. No. 11028, 1993 WL 220528, *3 (June 16, 1993), by the Delaware Supreme Court's decision in Nottingham Partners v. Dana, 564 A. 2d 1089 (1989).In Nottingham, a class action, the Delaware Supreme Court approved a settlement that released claims then pending in federal court. In approving that settlement, the Nottingham court appears to have eliminated the Ezzes requirement that the claims could have been raised in the suit that produced the settlement, at least with respect to class actions:"'[I]n order to achieve a comprehensive settlement that would prevent relitigation of settled questions at the377core of a class action, a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action.'" 564 A. 2d, at 1106 (quoting TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 460 (CA2 1982)).See Union Square, supra, at *3 (relying directly on Nottingham to hold that a Delaware court judgment settling a class action was res judicata and barred arbitration of duplicative claims that could not have been brought in the first suit). These cases indicate that even if, as here, a claim could not have been raised in the court that rendered the settlement judgment in a class action, a Delaware court would still find that the judgment bars subsequent pursuit of the claim.The Delaware Supreme Court has further manifested its understanding that when the Court of Chancery approves a global release of claims, its settlement judgment should preclude ongoing or future federal-court litigation of any released claims. In Nottingham, the Court stated that "[t]he validity of executing a general release in conjunction with the termination of litigation has long been recognized by the Delaware courts. More specifically, the Court of Chancery has a history of approving settlements that have implicitly or explicitly included a general release, which would also release federal claims." 564 A. 2d, at 1105 (citation omitted). Though the Delaware Supreme Court correctly recognized in Nottingham that it lacked actual authority to order the dismissal of any case pending in federal court, it asserted that state-court approval of the settlement would have the collateral effect of preventing class members from prosecuting their claims in federal court. Perhaps the clearest statement of the Delaware Chancery Court's view on this matter was articulated in the suit preceding this one: "When a state court settlement of a class action releases all claims which arise out of the challenged transaction and is determined to378be fair and to have met all due process requirements, the class members are bound by the release or the doctrine of issue preclusion. Class members cannot subsequently relitigate the claims barred by the settlement in a federal court." In re MCA, Inc. Shareholders Litigation, 598 A. 2d 687, 691 (1991).4 We are aware of no Delaware case that suggests otherwise.Given these statements of Delaware law, we think that a Delaware court would afford preclusive effect to the settlement judgment in this case, notwithstanding the fact that respondents could not have pressed their Exchange Act claims in the Court of Chancery. The claims are clearly within the scope of the release in the judgment, since the judgment specifically refers to this lawsuit. As required by Delaware Court of Chancery Rule 23, see Prezant v. De Angelis, 636 A. 2d 915, 920 (1994), the Court of Chancery found, and the Delaware Supreme Court affirmed, that the settlement was "fair, reasonable and adequate and in the best interests of the ... Settlement class" and that notice to the class was "in full compliance with ... the requirements of due process." In re MCA, Inc. Shareholders Litigation, C. A. No. 11740 (Feb. 22, 1993), reprinted in App. to Pet. for Cert. 73a, 74a. Cf. Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 812 (1985) (due process for class-action plaintiffs requires "notice plus an opportunity to be heard and participate in the litigation"). The Court of Chancery "further determined that the plaintiffs[,] ... as representatives of the Settlement Class, have fairly and adequately protected the4 In fact, the Chancery Court rejected the first settlement, which contained no opt-out provision, as unfair to the class precisely because it believed that the settlement would preclude the class from pursuing their exclusively federal claims in federal court. See In re MeA, Inc. Shareholders Litigation, 598 A. 2d, at 692 ("[I]f this Court provides for the release of all the claims arising out of the challenged transaction, the claims which the Objectors have asserted in the federal suit will likely be forever barred").379interests of the Settlement Class." In re MCA, Inc. Shareholders Litigation, supra, reprinted in App. to Pet. for Cert. 73a. Cf. Phillips Petroleum Co., supra, at 812 (due process requires that "the named plaintiff at all times adequately represent the interests of the absent class members").5 Under Delaware Rule 23, as under Federal Rule of Civil Procedure 23, "[a]ll members of the class, whether of a plaintiff or a defendant class, are bound by the judgment entered in the action unless, in a Rule 23(b)(3) action, they make a timely election for exclusion." 2 H. Newberg, Class Actions § 2755, p. 1224 (1977). See also Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 874 (1984) ("There is of course no dispute that under elementary principles of prior adjudication a judgment in a properly entertained class action is binding on class members in any subsequent litigation"). Respondents do not deny that, as shareholders of MCA's common stock, they were part of the plaintiff class and that they never opted out; they are bound, then, by the judgment.65 Apart from any discussion of Delaware law, respondents contend that the settlement proceedings did not satisfy due process because the class was inadequately represented. See Brief for Respondents 34-45. Respondents make this claim in spite of the Chancery Court's express ruling, following argument on the issue, that the class representatives fairly and adequately protected the interests of the class. Cf. Prezant v. De Angelis, 636 A. 2d 915, 923 (Del. 1994) ("[The] constitutional requirement [of adequacy of representation] is embodied in [Delaware] Rule 23(a)(4), which requires that the named plaintiff 'fairly and adequately protect the interests of the class' "). We need not address the due process claim, however, because it is outside the scope of the question presented in this Court. See Yee v. Escondido, 503 U. S. 519, 533 (1992). While it is true that a respondent may defend a judgment on alternative grounds, we generally do not address arguments that were not the basis for the decision below. See Peralta v. Heights Medical Center, Inc., 485 U. S. 80, 86 (1988).6 Respondents argue that their failure to opt out of the settlement class does not constitute consent to the terms of the settlement under traditional contract principles. Brief for Respondents 16-25. Again, the issue raised by respondents-whether the settlement could bar this suit380As a historical matter, we have seldom, if ever, held that a federal statute impliedly repealed § 1738. See Parsons Steel, Inc. v. First Alabama Bank, 474 U. S. 518, 523-525 (1986) (Anti-Injunction Act does not limit § 1738); Migra v. Warren City School Dist. Bd. of Ed., 465 U. S., at 83-85 (42 U. S. C. § 1983 does not limit claim preclusion under § 1738); Kremer v. Chemical Constr. Corp., 456 U. S., at 468-476 (Title VII of the Civil Rights Act of 1964 does not limit § 1738); Allen v. McCurry, 449 U. S. 90, 96-105 (1980) (§ 1983 does not limit issue preclusion under § 1738). But cf. Brown v. Felsen, 442 U. S. 127, 138-139 (1979) (declining to give claim preclusiveas a matter of contract law, as distinguished from § 1738 law-is outside the scope of the question on which we granted certiorari. We note, however, that if a State chooses to approach the preclusive effect of a judgment embodying the terms of a settlement agreement as a question of pure contract law, a federal court must adhere to that approach under § 1738. Kremer v. Chemical Constr. Corp., 456 U. S. 461, 481-482 (1982).381effect to prior state-court debt collection proceeding in federal bankruptcy suit, without discussing § 1738, state law, or implied repeals). The rarity with which we have discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an "'irreconcilable conflict'" between the two federal statutes at issue. Kremer v. Chemical Constr. Corp., supra, at 468 (quoting Radzanower v. Touche Ross & Co., 426 U. S. 148, 154 (1976)).Section 27 provides that "[t]he district courts of the United States ... shall have exclusive jurisdiction ... of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder." 15 U. S. C. § 78aa. There is no suggestion in § 27 that Congress meant for plaintiffs with Exchange Act claims to have more than one day in court to challenge the legality of a securities transaction. Though the statute plainly mandates that suits alleging violations of the Exchange Act may be maintained only in federal court, nothing in the language of § 27 "remotely expresses any congressional intent to contravene the common-law rules of preclusion or to repeal the express statutory requirements of ... 28 U. S. C. § 1738." Allen v. McCurry, supra, at 97-98.Nor does § 27 evince any intent to prevent litigants in state court-whether suing as individuals or as part of a classfrom voluntarily releasing Exchange Act claims in judicially approved settlements. While § 27 prohibits state courts from adjudicating claims arising under the Exchange Act, it does not prohibit state courts from approving the release of Exchange Act claims in the settlement of suits over which they have properly exercised jurisdiction, i. e., suits arising under state law or under federal law for which there is concurrent jurisdiction. In this case, for example, the Delaware action was not "brought to enforce" any rights or obligations under the Act. The Delaware court asserted judicial power382over a complaint asserting purely state-law causes of action7 and, after the parties agreed to settle, certified the class and approved the settlement pursuant to the requirements of Delaware Rule of Chancery 23 and the Due Process Clause. Thus, the Delaware court never trespassed upon the exclusive territory of the federal courts, but merely approved the settlement of a common-law suit pursuant to state and nonexclusive federal law. See Abramson v. Pennwood Investment Corp., 392 F.2d 759, 762 (CA2 1968) ("Although the state court could not adjudicate the federal claim, it was within its powers over the corporation and the parties to approve the release of that claim as a condition of settlement of the state action"). While it is true that the state court assessed the general worth of the federal claims in determining the fairness of the settlement, such assessment does not amount to a judgment on the merits of the claims. See TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 461 (CA2 1982) (" 'Approval of a settlement does not call for findings of fact regarding the claims to be compromised. The court is concerned only with the likelihood of success or failure; the actual merits of the controversy are not to be determined''') (quoting Haudek, The Settlement and Dismissal of Stockholders' Actions-Part II: The Settlement, 23 Sw. L. J. 765, 809 (1969) (footnotes omitted)). The Delaware court never purported to resolve the merits of the Exchange Act claims in the course of appraising the settlement; indeed, it expressly disavowed that purpose. See In re MCA, Inc. Shareholders Litigation, C. A. No. 11740 (Feb. 16, 1993), reprinted in App. to Pet. for Cert. 68a ("In determining whether a settlement should be approved, a court should not try the merits of the underlying claims. This principle would seem to be especially appropriate where the under-7 Though the plaintiff class premised one of its claims of fiduciary breach on the allegation that MCA wasted corporate assets by exposing the corporation to liability under the federal securities laws, the cause pleaded was nonetheless a state common-law action for breach of fiduciary duty.383lying claims, like the federal claims here, are outside the jurisdiction of this Court" (citation omitted)).The legislative history of the Exchange Act elucidates no specific purpose on the part of Congress in enacting § 27. See Murphy v. Gallagher, 761 F.2d 878, 885 (CA2 1985) (noting that the legislative history of the Exchange Act provides no readily apparent explanation for the provision of exclusive jurisdiction in § 27) (citing 2 & 3 L. Loss, Securities Regulation 997, 2005 (2d ed. 1961)). We may presume, however, that Congress intended § 27 to serve at least the general purposes underlying most grants of exclusive jurisdiction: "to achieve greater uniformity of construction and more effective and expert application of that law." Murphy v. Gallagher, supra, at 885. When a state court upholds a settlement that releases claims under the Exchange Act, it threatens neither of these policies. There is no danger that state-court judges who are not fully expert in federal securities law will say definitively what the Exchange Act means and enforce legal liabilities and duties thereunder. And the uniform construction of the Act is unaffected by a state court's approval of a proposed settlement because the state court does not adjudicate the Exchange Act claims but only evaluates the overall fairness of the settlement, generally by applying its own business judgment to the facts of the case. See, e. g., Polk v. Good, 507 A. 2d 531, 535 (Del. 1986).Furthermore, other provisions of the Exchange Act suggest that Congress did not intend to create an exception to § 1738 for suits alleging violations of the Act. Congress plainly contemplated the possibility of dual litigation in state and federal courts relating to securities transactions. See 15 U. S. C. § 78bb(a) (preserving "all other rights and remedies that may exist at law or in equity"). And all that Congress chose to say about the consequences of such litigation is that plaintiffs ought not obtain double recovery. See ibid. Congress said nothing to modify the background rule that where a state-court judgment precedes that of a federal384court, the federal court must give full faith and credit to the state-court judgment. See Murphy v. Gallagher, supra, at 884.Finally, precedent supports the conclusion that the concerns underlying the grant of exclusive jurisdiction in § 27 are not undermined by state-court approval of settlements releasing Exchange Act claims. We have held that statecourt proceedings may, in various ways, subsequently affect the litigation of exclusively federal claims without running afoul of the federal jurisdictional grant in question. In Becher v. Contoure Laboratories, Inc., 279 U. S. 388 (1929) (cited in Marrese, 470 U. S., at 381), we held that state-court findings of fact were issue preclusive in federal patent suits. We did so with full recognition that "the logical conclusion from the establishing of [the state law] claim is that Becher's patent is void." 279 U. S., at 391. Becher reasoned that although "decrees validating or invalidating patents belong to the Courts of the United States," that "does not give sacrosanctity to facts that may be conclusive upon the question in issue." Ibid. Similarly, while binding legal determinations of rights and liabilities under the Exchange Act are for federal courts only, there is nothing sacred about the approval of settlements of suits arising under state law, even where the parties agree to release exclusively federal claims. See also Brown v. Felsen, 442 U. S., at 139, n. 10 (noting that "[i]f, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court"); Pratt v. Paris Gas Light & Coke Co., 168 U. S. 255, 258 (1897) (when a state court has jurisdiction of the parties and the subject matter of the complaint, the state court may decide the validity of a patent when that issue is raised as a defense).We have also held that Exchange Act claims may be resolved by arbitration rather than litigation in federal court.385In Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987), we found that parties to an arbitration agreement could waive the right to have their Exchange Act claims tried in federal court and agree to arbitrate the claims. Id., at 227-228. It follows that state-court litigants ought also to be able to waive, or "release," the right to litigate Exchange Act claims in a federal forum as part of a settlement agreement. As Shearson/American Express Inc. demonstrates, a statute conferring exclusive federal jurisdiction for a certain class of claims does not necessarily require resolution of those claims in a federal court.Taken together, these cases stand for the general proposition that even when exclusively federal claims are at stake, there is no "universal right to litigate a federal claim in a federal district court." Allen v. McCurry, 449 U. S., at 105. If class-action plaintiffs wish to preserve absolutely their right to litigate exclusively federal claims in federal court, they should either opt out of the settlement class or object to the release of any exclusively federal claims. In fact, some of the plaintiffs in the Delaware class action requested exclusion from the settlement class. They are now proceeding in federal court with their federal claims, unimpeded by the Delaware judgment.In the end, §§ 27 and 1738 "do not pose an either-or proposition." Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253 (1992). They can be reconciled by reading § 1738 to mandate full faith and credit of state-court judgments incorporating global settlements, provided the rendering court had jurisdiction over the underlying suit itself, and by reading § 27 to prohibit state courts from exercising jurisdiction over suits arising under the Exchange Act. Cf. 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4470, pp. 688-689 (1981) ("[S]ettlement of state court litigation has been held to defeat a subsequent federal action if the settlement was intended to apply to claims in exclusive federal jurisdiction as well as other claims .... These rulings386are surely correct"). Congress' intent to provide an exclusive federal forum for adjudication of suits to enforce the Exchange Act is clear enough. But we can find no suggestion in § 27 that Congress meant to override the "principles of comity and repose embodied in § 1738," Kremer v. Chemical Constr. Corp., 456 U. S., at 463, by allowing plaintiffs with Exchange Act claims to release those claims in state court and then litigate them in federal court. We conclude that the Delaware courts would give the settlement judgment preclusive effect in a subsequent proceeding and, further, that § 27 did not effect a partial repeal of § 1738.CThe Court of Appeals did not engage in any analysis of Delaware law pursuant to § 1738. Rather, the Court of Appeals declined to apply § 1738 on the ground that where the rendering forum lacked jurisdiction over the subject matter or the parties, full faith and credit is not required. 50 F. 3d, at 661,666. See Underwriters Nat. Assurance Co. v. North Carolina Life & Accident & Health Ins. Guaranty Assn., 455 U. S. 691, 704-705 (1982) (" '[A] judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the merits-had jurisdiction, that is, to render the judgment''') (quoting Durfee v. Duke, 375 U. S. 106, 110 (1963)). The Court of Appeals decided that the subject-matter jurisdiction exception to full faith and credit applies to this case because the Delaware court acted outside the bounds of its own jurisdiction in approving the settlement, since the settlement released exclusively federal claims. See 50 F. 3d, at 661-662, and n. 25.As explained above, the state court in this case clearly possessed jurisdiction over the subject matter of the underlying suit and over the defendants. Only if this were not so-for instance, if the complaint alleged violations of the Exchange Act and the Delaware court rendered a judgment387on the merits of those claims-would the exception to § 1738 for lack of subject-matter jurisdiction apply. Where, as here, the rendering court in fact had subject-matter jurisdiction, the subject-matter-jurisdiction exception to full faith and credit is simply inapposite. In such a case, the relevance of a federal statute that provides for exclusive federal jurisdiction is not to the state court's possession of jurisdiction per se, but to the existence of a partial repeal of § 1738.8***The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered | OCTOBER TERM, 1995SyllabusMATSUSHITA ELECTRIC INDUSTRIAL CO., LTD., ET AL. v. EPSTEIN ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 94-1809. Argued November 27, 1995-Decided February 27, 1996A tender offer resulting in petitioner Matsushita Electric Industrial Coo's acquisition of MCA, Inc., a Delaware corporation, precipitated two lawsuits on behalf of MCA's stockholders. While the first, a Delaware class action based purely on state-law claims, was pending, the second suit was filed in a California federal court, alleging that Matsushita's tender offer violated certain Securities and Exchange Commission Rules promulgated under the Securities Exchange Act of 1934 (Exchange Act). Section 27 of that Act confers exclusive jurisdiction upon the federal courts in such suits. Matsushita prevailed in the federal case, and while that judgment was on appeal, the parties to the state action reached a settlement, agreeing, inter alia, that class members who did not opt out of the class would waive all claims in connection with the tender offer, including those asserted in the California federal action. The Chancery Court approved the agreement, and the Delaware Supreme Court affirmed. Respondents are members of both the state and federal classes who did not opt out of the settlement class. In the instant case, the Ninth Circuit found that the Delaware judgment was not a bar to further prosecution of the federal action under the Full Faith and Credit Act, 28 U. S. C. § 1738, and fashioned a test limiting the preclusive force of a state-court settlement judgment to those claims that could "have been extinguished by the issue preclusive effect of an adjudication of the state claims."Held: The Delaware settlement judgment is entitled to full faith and credit, notwithstanding the fact that it released claims within the exclusive jurisdiction of the federal courts. Pp. 373-387.(a) Section 1738-which directs federal courts to treat a state-court judgment with the same respect that it would receive in the rendering State's courts-is generally applicable in cases in which the state-court judgment incorporates a class-action settlement releasing claims solely within the federal courts' jurisdiction. The judgment of a state court in a class action is plainly the product of a "judicial proceeding" within the meaning of § 1738, and the fact that the judgment might bar litigation of exclusively federal claims does not necessarily make § 1738 inap-368plicable, Marrese v. American Academy of Orthopaedic Surgeons, 470(b) Marrese provides the analytical framework for deciding whether the Delaware judgment precludes this exclusively federal action. A federal court must first determine whether the rendering State's law indicates that the claim would be barred from litigation in a court of that State; if so, the federal court must decide whether, as an exception to § 1738, it should refuse to give preclusive effect to the state-court judgment. P. 375.(c) Delaware Supreme Court cases have provided rules regarding the preclusive force of class-action settlement agreements in subsequent state-court suits and have also spoken to the effect of such judgments in federal court, indicating that when the Chancery Court approves a global release of claims, its settlement judgment will preclude ongoing or future federal-court litigation of any released claims. Thus, it appears that a Delaware court would give this settlement judgment preclusive effect in a subsequent proceeding, notwithstanding the fact that respondents could not have pressed their Exchange Act claims in the Chancery Court. The release in the judgment specifically refers to this lawsuit, the state courts found the settlement fair and the class notice adequate, and respondents acknowledge that they did not opt out of the class. Pp.375-379.(d) Because it appears that the judgment would be res judicata under Delaware law, this Court must proceed to the second step of the Marrese analysis and ask whether § 27 of the Exchange Act partially repealed § 1738. Any such modification must be implied, but this Court has seldom, if ever, held that a federal statute impliedly repealed § 1738. There is no suggestion in § 27 that Congress meant to contravene the common-law rules of preclusion or to repeal § 1738's express statutory requirement. Nor does § 27 evince any intent to prevent a state-court litigant from voluntarily releasing Exchange Act claims in judicially approved settlements. Assuming that § 27 is intended to serve at least the general purposes of achieving greater uniformity of construction and more effective and expert application of the Exchange Act, a state court threatens neither purpose when it upholds a settlement releasing Exchange Act claims. In addition, other provisions of the Exchange Act suggest that Congress did not intend to create an exception to § 1738 for suits alleging violations of the Act, and precedent supports the conclusion that the concerns underlying the grant of exclusive jurisdiction in § 27 are not undermined by state-court approval of settlements releasing Exchange Act claims. Even when exclusively federal claims are at stake, there is no universal right to litigate such claims in federal court. See, e. g., Allen v. McCurry, 449 U. S. 90, 105. Pp.380-386.369Full Text of Opinion |
348 | 1985_84-6263 | JUSTICE POWELL delivered the opinion of the Court.This case requires us to reexamine that portion of Swain v. Alabama, 380 U. S. 202 (1965), concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State's use of peremptory challenges to exclude members of his race from the petit jury. [Footnote 1]IPetitioner, a black man, was indicted in Kentucky on charges of second-degree burglary and receipt of stolen goods. On the first day of trial in Jefferson Circuit Court, the judge conducted voir dire examination of the venire, excused certain jurors for cause, and permitted the parties to Page 476 U. S. 83 exercise peremptory challenges. [Footnote 2] The prosecutor used his peremptory challenges to strike all four black persons on the venire, and a jury composed only of white persons was selected. Defense counsel moved to discharge the jury before it was sworn on the ground that the prosecutor's removal of the black veniremen violated petitioner's rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross-section of the community, and under the Fourteenth Amendment to equal protection of the laws. Counsel requested a hearing on his motion. Without expressly ruling on the request for a hearing, the trial judge observed that the parties were entitled to use their peremptory challenges to "strike anybody they want to." The judge then denied petitioner's motion, reasoning that the cross-section requirement applies only to selection of the venire, and not to selection of the petit jury itself.The jury convicted petitioner on both counts. On appeal to the Supreme Court of Kentucky, petitioner pressed, among other claims, the argument concerning the prosecutor's use of peremptory challenges. Conceding that Swain v. Alabama, supra, apparently foreclosed an equal protection claim based solely on the prosecutor's conduct in this case, petitioner urged the court to follow decisions of other States, People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748 (1978); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881 (1979), and to hold that such conduct violated his rights under the Sixth Amendment and § 11 of the Kentucky Constitution to a jury drawn from a cross-section of the community. Petitioner also contended Page 476 U. S. 84 that the facts showed that the prosecutor had engaged in a "pattern" of discriminatory challenges in this case and established an equal protection violation under Swain.The Supreme Court of Kentucky affirmed. In a single paragraph, the court declined petitioner's invitation to adopt the reasoning of People v. Wheeler, supra, and Commonwealth v. Soares, supra. The court observed that it recently had reaffirmed its reliance on Swain, and had held that a defendant alleging lack of a fair cross-section must demonstrate systematic exclusion of a group of jurors from the venire. See Commonwealth v. McFerron, 680 S.W.2d 924 (1984). We granted certiorari, 471 U.S. 1052 (1985), and now reverse.IIIn Swain v. Alabama, this Court recognized that a"State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause."380 U.S. at 380 U. S. 203-204. This principle has been "consistently and repeatedly" reaffirmed, id. at 380 U. S. 204, in numerous decisions of this Court both preceding and following Swain. [Footnote 3] We reaffirm the principle today. [Footnote 4] Page 476 U. S. 85AMore than a century ago, the Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded. Strauder v. West Virginia, 100 U. S. 303 (1880). That decision laid the foundation for the Court's unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn. In Strauder, the Court explained that the central concern of the recently ratified Fourteenth Amendment was to put an end to governmental discrimination on account of race. Id. at 100 U. S. 306-307. Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure.In holding that racial discrimination in jury selection offends the Equal Protection Clause, the Court in Strauder recognized, however, that a defendant has no right to a "petit jury composed in whole or in part of persons of his own race." Id. at 100 U. S. 305. [Footnote 5] "The number of our races and nationalities stands in the way of evolution of such a conception" of the demand of equal protection. Akins v. Texas, 325 U. S. 398, 325 U. S. 403 (1945). [Footnote 6] But the defendant does have the right to be Page 476 U. S. 86 tried by a jury whose members are selected pursuant to nondiscriminatory criteria. Martin v. Texas, 200 U. S. 316, 200 U. S. 321 (1906); Ex parte Virginia, 100 U. S. 339, 100 U. S. 345 (1880). The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, Strauder, supra, at 100 U. S. 305, [Footnote 7] or on the false assumption that members of his race as a group are not qualified to serve as jurors, see Norris v. Alabama, 294 U. S. 587, 294 U. S. 599 (1935); Neal v. Delaware, 103 U. S. 370, 103 U. S. 397 (1881).Purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection, because it denies him the protection that a trial by jury is intended to secure."The very idea of a jury is a body . . . composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds."Strauder, supra, at 100 U. S. 308; see Carter v. Jury Comm'n of Greene County, 396 U. S. 320, 396 U. S. 330 (1970). The petit jury has occupied a central position in our system of justice by safeguarding a person accused of crime against the arbitrary exercise of power by prosecutor or judge. Duncan v. Louisiana, 391 U. S. 145, 391 U. S. 156 (1968). [Footnote 8] Those on the venire Page 476 U. S. 87 must be "indifferently chosen," [Footnote 9] to secure the defendant's right under the Fourteenth Amendment to "protection of life and liberty against race or color prejudice." Strauder, supra, at 100 U. S. 309.Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. See Thiel v. Southern Pacific Co., 328 U. S. 217, 328 U. S. 223-224 (1946). A person's race simply "is unrelated to his fitness as a juror." Id. at 328 U. S. 227 (Frankfurter, J., dissenting). As long ago as Strauder, therefore, the Court recognized that, by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror. 100 U.S. at 100 U. S. 308; see Carter v. Jury Comm'n of Greene County, supra, at 396 U. S. 329-330; Neal v. Delaware, supra, at 103 U. S. 386.The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. See Ballard v. United States, 329 U. S. 187, 329 U. S. 195 (1946); McCray v. New York, 461 U.S. 961, 968 (1983) (MARSHALL, J., dissenting from denial of certiorari). Discrimination within the Page 476 U. S. 88 judicial system is most pernicious because it is"a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others."Strauder, 100 U.S. at 100 U. S. 308.BIn Strauder, the Court invalidated a state statute that provided that only white men could serve as jurors. Id. at 100 U. S. 305. We can be confident that no State now has such a law. The Constitution requires, however, that we look beyond the face of the statute defining juror qualifications, and also consider challenged selection practices to afford "protection against action of the State through its administrative officers in effecting the prohibited discrimination." Norris v. Alabama, supra, at 294 U. S. 589; see Hernandez v. Texas, 347 U. S. 475, 347 U. S. 478-479 (1954); Ex parte Virginia, supra, at 100 U. S. 346-347. Thus, the Court has found a denial of equal protection where the procedures implementing a neutral statute operated to exclude persons from the venire on racial grounds, [Footnote 10] and has made clear that the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors. [Footnote 11] While decisions of this Court have been concerned largely with discrimination during selection of the venire, the principles announced there also forbid discrimination on account of race in selection of the petit jury. Since the Fourteenth Amendment protects an accused throughout the proceedings bringing him to justice, Hill v. Texas, 316 U. S. 400, 316 U. S. 406 (1942), the State may not draw up its jury lists pursuant to neutral procedures, but then resort to discrimination at "other stages in the selection process," Avery v. Georgia, 345 U. S. 559, 345 U. S. 562 (1953); see McCray v. New York, supra, at 462 U. S. 965, 968 Page 476 U. S. 89 (MARSHALL, J., dissenting from denial of certiorari); see also Alexander v. Louisiana, 405 U. S. 625, 405 U. S. 632 (1972).Accordingly, the component of the jury selection process at issue here, the State's privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause. [Footnote 12] Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges "for any reason at all, as long as that reason is related to his view concerning the outcome" of the case to be tried, United States v. Robinson, 421 F. Supp. 467, 473 (Conn.1976), mandamus granted sub nom. United States v. Newman, 549 F.2d 240 (CA2 1977), the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.IIIThe principles announced in Strauder never have been questioned in any subsequent decision of this Court. Page 476 U. S. 90 Rather, the Court has been called upon repeatedly to review the application of those principles to particular facts. [Footnote 13] A recurring question in these cases, as in any case alleging a violation of the Equal Protection Clause, was whether the defendant had met his burden of proving purposeful discrimination on the part of the State. Whitus v. Georgia, 385 U. S. 545, 550 (1967); Hernandez v. Texas, supra at 347 U. S. 478-481; Akins v. Texas, 325 U.S. at 326 U. S. 403-404; Martin v. Texas, 200 U. S. 316 (1906). That question also was at the heart of the portion of Swain v. Alabama we reexamine today. [Footnote 14]ASwain required the Court to decide, among other issues, whether a black defendant was denied equal protection by the State's exercise of peremptory challenges to exclude members of his race from the petit jury. 380 U.S. at 380 U. S. 209-210. The record in Swain showed that the prosecutor Page 476 U. S. 91 had used the State's peremptory challenges to strike the six black persons included on the petit jury venire. Id. at 380 U. S. 210. While rejecting the defendant's claim for failure to prove purposeful discrimination, the Court nonetheless indicated that the Equal Protection Clause placed some limits on the State's exercise of peremptory challenges. Id. at 380 U. S. 222-224.The Court sought to accommodate the prosecutor's historical privilege of peremptory challenge free of judicial control, id. at 380 U. S. 214-220, and the constitutional prohibition on exclusion of persons from jury service on account of race, id. at 380 U. S. 222-224. While the Constitution does not confer a right to peremptory challenges, id. at 380 U. S. 219 (citing Stilson v. United States, 250 U. S. 583, 250 U. S. 586 (1919)), those challenges traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury, 380 U.S. at 380 U. S. 219. [Footnote 15] To preserve the peremptory nature of the prosecutor's challenge, the Court in Swain declined to scrutinize his actions in a particular case by relying on a presumption that he properly exercised the State's challenges. Id. at 380 U. S. 221-222.The Court went on to observe, however, that a State may not exercise its challenges in contravention of the Equal Protection Clause. It was impermissible for a prosecutor to use his challenges to exclude blacks from the jury "for reasons wholly unrelated to the outcome of the particular case on trial," or to deny to blacks "the same right and opportunity to participate in the administration of justice enjoyed by the white population." Id. at 380 U. S. 224. Accordingly, a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system was "being perverted" in that manner. Ibid. For example, an inference of purposeful discrimination would be raised on evidence that a prosecutor,"in case after case, whatever the Page 476 U. S. 92 circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries."Id. at 380 U. S. 223. Evidence offered by the defendant in Swain did not meet that standard. While the defendant showed that prosecutors in the jurisdiction had exercised their strikes to exclude blacks from the jury, he offered no proof of the circumstances under which prosecutors were responsible for striking black jurors beyond the facts of his own case. Id. at 380 U. S. 224-228.A number of lower courts following the teaching of Swain reasoned that proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause. [Footnote 16] Since this interpretation of Swain has placed on defendants a crippling burden of proof, [Footnote 17] prosecutors' peremptory challenges are now largely immune Page 476 U. S. 93 from constitutional scrutiny. For reasons that follow, we reject this evidentiary formulation as inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause.BSince the decision in Swain, we have explained that our cases concerning selection of the venire reflect the general equal protection principle that the "invidious quality" of governmental action claimed to be racially discriminatory "must ultimately be traced to a racially discriminatory purpose." Washington v. Davis, 426 U. S. 229, 426 U. S. 240 (1976). As in any equal protection case, the "burden is, of course," on the defendant who alleges discriminatory selection of the venire "to prove the existence of purposeful discrimination." Whitus v. Georgia, 385 U.S. at 385 U. S. 550 (citing Tarrance v. Florida, 188 U. S. 519 (1903)). In deciding if the defendant has carried his burden of persuasion, a court must undertake "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 429 U. S. 266 (1977). Circumstantial evidence of invidious intent may include proof of disproportionate impact. Washington v. Davis, 426 U.S. at 426 U. S. 242. We have observed that, under some circumstances, proof of discriminatory impact"may, for all practical purposes, demonstrate unconstitutionality because, in various circumstances, the discrimination is very difficult to explain on nonracial grounds."Ibid. For example, "total or seriously disproportionate exclusion of Negroes from jury venires," ibid., "is itself such an unequal application of the law . . . as to show intentional discrimination,'" id. at 426 U. S. 241 (quoting Akins v. Texas, 325 U.S. at 325 U. S. 404).Moreover, since Swain, we have recognized that a black defendant alleging that members of his race have been impermissibly excluded from the venire may make out a prima Page 476 U. S. 94 facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Washington v. Davis, supra, at 426 U. S. 239-242. Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion. Alexander v. Louisiana, supra, at 405 U. S. 632. The State cannot meet this burden on mere general assertions that its officials did not discriminate, or that they properly performed their official duties. See Alexander v. Louisiana, supra, at 632; Jones v. Georgia, 389 U. S. 24, 25 (1967). Rather, the State must demonstrate that "permissible racially neutral selection criteria and procedures have produced the monochromatic result." Alexander v. Louisiana, supra, at 405 U. S. 632; see Washington v. Davis, supra, at 426 U. S. 241. [Footnote 18]The showing necessary to establish a prima facie case of purposeful discrimination in selection of the venire may be discerned in this Court's decisions. E.g., Castaneda v. Partida, 430 U. S. 482, 430 U. S. 494-495 (1977); Alexander v. Louisiana, supra, at 405 U. S. 631-632. The defendant initially must show that he is a member of a racial group capable of being singled out for different treatment. Castaneda v. Partida, supra, at 430 U. S. 494. In combination with that evidence, a defendant may then make a prima facie case by proving that, in the particular jurisdiction, members of his race have not been summoned for jury service over an extended period of time. Id. at 430 U. S. 494. Proof of systematic exclusion from the venire raises an inference of purposeful discrimination, because the "result bespeaks discrimination." Hernandez v. Texas, 347 Page 476 U. S. 95 U.S. at 347 U. S. 482; see Arlington Heights v. Metropolitan Housing Development Corp., supra, at 429 U. S. 266.Since the ultimate issue is whether the State has discriminated in selecting the defendant's venire, however, the defendant may establish a prima facie case "in other ways than by evidence of long-continued unexplained absence" of members of his race "from many panels." Cassell v. Texas, 339 U. S. 282, 339 U. S. 290 (1950) (plurality opinion). In cases involving the venire, this Court has found a prima facie case on proof that members of the defendant's race were substantially underrepresented on the venire from which his jury was drawn, and that the venire was selected under a practice providing "the opportunity for discrimination." Whitus v. Georgia, supra, at 385 U. S. 552; see Castaneda v. Partida, supra, at 430 U. S. 494; Washington v. Davis, supra, at 426 U. S. 241; Alexander v. Louisiana, supra, at 405 U. S. 629-631. This combination of factors raises the necessary inference of purposeful discrimination because the Court has declined to attribute to chance the absence of black citizens on a particular jury array where the selection mechanism is subject to abuse. When circumstances suggest the need, the trial court must undertake a "factual inquiry" that "takes into account all possible explanatory factors" in the particular case. Alexander v. Louisiana, supra, at 405 U. S. 630.Thus, since the decision in Swain, this Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. These decisions are in accordance with the proposition, articulated in Arlington Heights v. Metropolitan Housing Development Corp., that "a consistent pattern of official racial discrimination" is not "a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act" is not "immunized by the absence of such discrimination in the making of other comparable decisions." 429 U.S. at 429 U. S. 266, n. 14. For evidentiary requirements Page 476 U. S. 96 to dictate that "several must suffer discrimination" before one could object, McCray v. New York, 461 U.S. at 965 (MARSHALL, J., dissenting from denial of certiorari), would be inconsistent with the promise of equal protection to all. [Footnote 19]CThe standards for assessing a prima facie case in the context of discriminatory selection of the venire have been fully articulated since Swain. See Castaneda v. Partida, supra, at 430 U. S. 494-495; Washington v. Davis, 426 U.S. at 426 U. S. 241-242; Alexander v. Louisiana, supra, at 405 U. S. 629-631. These principles support our conclusion that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra, at 430 U. S. 494, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Avery v. Georgia, 345 U.S. at 345 U. S. 562. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. Page 476 U. S. 97 For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors.Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. See McCray v. Abrams, 750 F.2d at 1132; Booker v. Jabe, 775 F.2d 762, 773 (CA6 1985), cert. pending, No. 85-1028. But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption -- or his intuitive judgment -- that they would be partial to the defendant because of their shared race. Cf. Norris v. Alabama, 294 U.S. at 294 U. S. 598-599; see Thompson v. United States, 469 U. S. 1024, 1026 (1984) (BRENNAN, J., dissenting from denial of certiorari). Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, supra, at 476 U. S. 86, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of Page 476 U. S. 98 such assumptions, which arise solely from the jurors' race. Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or "affirm[ing] [his] good faith in making individual selections." Alexander v. Louisiana, 405 U.S. at 405 U. S. 632. If these general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause "would be but a vain and illusory requirement." Norris v. Alabama, supra, at 294 U. S. 598. The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. [Footnote 20] The trial court then will have the duty to determine if the defendant has established purposeful discrimination. [Footnote 21]IVThe State contends that our holding will eviscerate the fair trial values served by the peremptory challenge. Conceding that the Constitution does not guarantee a right to peremptory challenges and that Swain did state that their use ultimately is subject to the strictures of equal protection, the State argues that the privilege of unfettered exercise of the challenge is of vital importance to the criminal justice system.While we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the Page 476 U. S. 99 contribution the challenge generally makes to the administration of justice. The reality of practice, amply reflected in many state and federal court opinions, shows that the challenge may be, and unfortunately at times has been, used to discriminate against black jurors. By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. [Footnote 22] In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.Nor are we persuaded by the State's suggestion that our holding will create serious administrative difficulties. In those States applying a version of the evidentiary standard we recognize today, courts have not experienced serious administrative burdens, [Footnote 23] and the peremptory challenge system has survived. We decline, however, to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges. [Footnote 24] Page 476 U. S. 100VIn this case, petitioner made a timely objection to the prosecutor's removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner's conviction be reversed. E.g., Whitus v. Georgia, 385 U.S. at 385 U. S. 549-550; Hernandez v. Texas, 347 U.S. at 347 U. S. 482; Patton v. Mississippi, 332 U.S. at 469. [Footnote 25]It is so ordered | U.S. Supreme CourtBatson v. Kentucky, 476 U.S. 79 (1986)Batson v. KentuckyNo. 84-6263Argued December 12, 1985Decided April 30, 1986476 U.S. 79SyllabusDuring the criminal trial in a Kentucky state court of petitioner, a black man, the judge conducted voir dire examination of the jury venire and excused certain jurors for cause. The prosecutor then used his peremptory challenges to strike all four black persons on the venire, and a jury composed only of white persons was selected. Defense counsel moved to discharge the jury on the ground that the prosecutor's removal of the black veniremen violated petitioner's rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross-section of the community, and under the Fourteenth Amendment to equal protection of the laws. Without expressly ruling on petitioner's request for a hearing, the trial judge denied the motion, and the jury ultimately convicted petitioner. Affirming the conviction, the Kentucky Supreme Court observed that recently, in another case, it had relied on Swain v. Alabama, 380 U. S. 202, and had held that a defendant alleging lack of a fair cross-section must demonstrate systematic exclusion of a group of jurors from the venire.Held:1. The principle announced in Strauder v. West Virginia, 100 U. S. 303, that a State denies a black defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded, is reaffirmed. Pp. 476 U. S. 84-89.(a) A defendant has no right to a petit jury composed in whole or in part of persons of his own race. Strauder v. West Virginia, 100 U. S. 303, 100 U. S. 305. However, the Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors. By denying a person participation in jury service on account of his race, the State also unconstitutionally discriminates against the excluded juror. Moreover, selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Pp. 476 U. S. 85-88.(b) The same equal protection principles as are applied to determine whether there is discrimination in selecting the venire also govern the State's use of peremptory challenges to strike individual jurors from the petit jury. Although a prosecutor ordinarily is entitled to exercise Page 476 U. S. 80 peremptory challenges for any reason, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant. Pp. 476 U. S. 88-89.2. The portion of Swain v. Alabama, supra, concerning the evidentiary burden placed on a defendant who claims that he has been denied equal protection through the State's discriminatory use of peremptory challenges is rejected. In Swain, it was held that a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system as a whole was being perverted. Evidence offered by the defendant in Swain did not meet that standard, because it did not demonstrate the circumstances under which prosecutors in the jurisdiction were responsible for striking black jurors beyond the facts of the defendant's case. This evidentiary formulation is inconsistent with equal protection standards subsequently developed in decisions relating to selection of the jury venire. A defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. Pp. 476 U. S. 89-96.3. A defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor may not rebut a prima facie showing by stating that he challenged the jurors on the assumption that they would be partial to the defendant because of their shared race or by affirming his good faith in individual selections. Pp. 476 U. S. 96-98.4. While the peremptory challenge occupies an important position in trial procedures, the above-stated principles will not undermine the contribution that the challenge generally makes to the administration of justice. Nor will application of such principles create serious administrative difficulties. Pp. 476 U. S. 98-99. Page 476 U. S. 815. Because the trial court here flatly rejected petitioner's objection to the prosecutor's removal of all black persons on the venire without requiring the prosecutor to explain his action, the case is remanded for further proceedings. P. 476 U. S. 100.Reversed and remanded.POWELL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., post, p. 476 U. S. 100, and MARSHALL, J., post, p. 476 U. S. 102, filed concurring opinions. STEVENS, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 476 U. S. 108. O'CONNOR, J., filed a concurring opinion, post, p. 476 U. S. 111. BURGER, C.J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 476 U. S. 112. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 476 U. S. 134. Page 476 U. S. 82 |
349 | 1955_94 | MR. JUSTICE REED delivered the opinion of the Court.The Federal Communications Commission issued, on August 19, 1948, a notice of proposed rulemaking under the authority of 47 U.S.C. §§ 303(r), 311, 313 and 314 (Communications Act of 1934, as amended, 47 U.S.C. § 301 et seq.). It was proposed, so far as is pertinent to this case, to amend Rules 3.35, 3.240, and 3.636 relating to Multiple Ownership of standard, FM and television broadcast stations. Those rules provide that licenses for broadcasting stations will not be granted if the applicant, directly or indirectly, has an interest in other stations beyond a limited number. The purpose of the limitations is to avoid overconcentration of broadcasting facilities.As required by 5 U.S.C. § 1003(b), the notice permitted "interested" parties to file statements or briefs. Such parties might also intervene in appeals. 47 U.S.C. § 402(d) and (e). Respondent, licensee of a number of radio and television stations, filed a statement objecting to the proposed changes, as did other interested broadcasters. Page 351 U. S. 194 Respondent based its objections largely on the fact that the proposed rules did not allow one person to hold as many FM and television stations as standard stations. Storer argued that such limitations might cause irreparable financial damage to owners of standard stations if an obsolescent standard station could not be augmented by FM and television facilities.In November, 1953, the Commission entered an order amending the Rules in question without significant changes from the proposed forms. [Footnote 1] A review was sought Page 351 U. S. 195 in due course by respondent in the Court of Appeals for the District of Columbia Circuit under 5 U.S.C. § 1034, [Footnote 2] 47 U.S.C. § 402(a), [Footnote 3] and 5 U.S.C. § 1009(a), (c). [Footnote 4] Respondent alleged it owned or controlled, within the meaning of the Multiple Ownership Rules, seven standard radio, five FM radio, and five television broadcast stations. It asserted that the Rules complained of were in conflict with the statutory mandates that applicants should be granted licenses if the public interest would be served and that applicants must have a hearing before denial of an application. 47 U.S.C. § 309(a) and (b). [Footnote 5] Page 351 U. S. 196 Respondent also claimed:"The Rules, in considering the ownership of one (1%) percent or more of the voting stock of a broadcast licensee corporation as equivalent to ownership, operation or control of the station, are unreasonable and bear no rational relationship to the national Anti-Trust policy."This latter claim was important to respondent because, allegedly, 20% of its voting stock was in scattered ownership, and was traded in by licensed dealers. This stock was thus beyond its control.Respondent asserted it was a "party aggrieved" and a "person suffering legal wrong" or adversely affected under the several statutes that authorize review of FCC action. See notes 2 3 and | 3 and S. 192fn4|>4, supra. It stated its injuries from the Rules thus:"Storer is adversely affected and aggrieved by the Order of the Commission adopted on November 25, 1953, amending the Multiple Ownership Rules, in that:""(a) Storer is denied the right of a full and fair hearing to determine whether its ownership of an interest in more than seven (7) standard radio and five (5) television broadcast stations, in light of and upon a showing of all material circumstances, will Page 351 U. S. 197 thereby serve the public interest, convenience and necessity.""(b) The acquisition of Storer's voting stock by the public under circumstances beyond the control of Storer, may and could be violative of the Multiple Ownership rules, as amended, and result in a forfeiture of licenses now held by Storer, with resultant loss and injury to Storer and to all other Storer stockholders."On the day the amendments to the Rules were adopted, a pending application of Storer for an additional television station at Miami was dismissed on the basis of the Rules.While the question of respondent's right to appeal has not been raised by either party or by the Court of Appeals, our jurisdiction is now mooted. It may be considered. Federal Communications Commission v. National Broadcasting Co., 319 U. S. 239, 319 U. S. 246. Jurisdiction depends upon standing to seek review, and upon ripeness. If respondent could not rightfully seek review from the order adopting the challenged regulations, it must await action to its disadvantage under them, and neither the Court of Appeals nor this Court has jurisdiction of the controversy. Under the above-cited Code sections, review of Commission action is granted any party aggrieved or suffering legal wrong by that action. [Footnote 6] Page 351 U. S. 198We think respondent had standing to sue at the time it exercised its privilege. The process of rulemaking was complete. It was final agency action, 5 U.S.C. § 1001(c) and (g), by which Storer claimed to be "aggrieved." When the authority to appeal was substantially the same, we held that an appellant who complained of the grant of a license to a competitor because it would reduce its own income had standing to appeal against a contention, admittedly sound, that such economic injury to appellant was not a proper issue before the Commission. We said:"Congress had some purpose in enacting section 402(b)(2). It may have been of opinion that one likely to be financially injured by the issue of a license would by the only person having a sufficient interest to bring to the attention of the appellate court errors of law in the action of the Commission in granting the license. It is within the power of Congress to confer such standing to prosecute an appeal."Federal Communications Comm'n v. Sanders Bros. Radio Station, 309 U. S. 470, 309 U. S. 477. We added that such an appellant could raise any relevant question of law in respect to the order.Again, in Columbia Broadcasting System v. United States, 316 U. S. 407, this Court considered the problem of standing to review Commission action under the then existing § 402(a), 48 Stat. 1093, and the Urgent Deficiencies Act, 38 Stat. 219. CBS there sought review of the adoption of Chain Broadcasting Regulations by the Commission. Against the contention that the adoption of regulations did not command CBS to do or refrain from doing anything (dissent, 316 U.S. at 316 U. S. 429), this Court held that the order promulgating regulations was Page 351 U. S. 199 reviewable because it presently affected existing contractual relationships. It said:"The regulations are not any the less reviewable because their promulgation did not operate of their own force to deny or cancel a license. It is enough that failure to comply with them penalizes licensees, and appellant, with whom they contract. If an administrative order has that effect, it is reviewable, and it does not cease to be so merely because it is not certain whether the Commission will institute proceedings to enforce the penalty incurred under its regulations for non-compliance."Id. at 316 U. S. 417-418. The Court said that the regulations "presently determine rights." Id. at 316 U. S. 421."Appellant's standing to maintain the present suit in equity is unaffected by the fact that the regulations are not directed to appellant and do not, in terms, compel action by it or impose penalties upon it because of its action or failure to act. It is enough that, by setting the controlling standards for the Commission's action, the regulations purport to operate to alter and affect adversely appellant's contractual rights and business relations with station owners whose applications for licenses the regulations will cause to be rejected and whose licenses the regulations may cause to be revoked."Id. at 316 U. S. 422. See Federal Communications Commission v. American Broadcasting Co., 347 U. S. 284, 347 U. S. 289, and E; Dorado Oil Works v. United States, 328 U. S. 12, 328 U. S. 18-19.The regulations here under consideration presently aggrieve the respondent. The Commission exercised a power of rulemaking which controls broadcasters. The Rules now operate to control the business affairs of Storer. Unless it obtains a modification of this declared administrative Page 351 U. S. 200 policy, Storer cannot enlarge the number of its standard of FM stations. It seems, too, that the note to Rule 3.636 ( n 1, supra) endangers Storer's stations as alleged in its petition for review. See this opinion, supra, p. 351 U. S. 197, at (b). Commission hearings are affected now by the Rules. Storer cannot cogently plan its present or future operations. [Footnote 7] It cannot plan to enlarge the number of its standard or FM stations, and, at any moment, the purchase of Storer's voting stock by some member of the public could endanger its existing structure. These are grievances presently restricting Storer's operations. In the light of the legislation allowing review of the Commission's actions, we hold that Storer has standing to bring this action.In its petition for review, Storer prayed the court to vacate the provisions of the Multiple Ownership Rules insofar as they denied to an applicant already controlling the allowable number of stations a "full and fair hearing" to determine whether additional licenses to the applicant would be in the public interest. [Footnote 8] The Court of Appeals struck out, as contrary to § 309(a) and (b) of the Communications Act ( n 5, supra), the words italicized in Rule 3.636 ( n 1, supra) and the similar words in Rules 3.35 and 3.240. The case was remanded to the Commission with directions to eliminate these words. 95 U.S.App.D.C. 97, 220 F.2d 204. We granted certiorari, 350 U.S. 816 Page 351 U. S. 201.The Commission asserts that its power to make regulations gives it the authority to limit concentration of stations under a single control. [Footnote 9] It argues that rules may go beyond the technical aspects of radio, that rules may validly give concreteness to a standard of public interest, and that the right to a hearing does not exist where an applicant admittedly does not meet those standards, as there would be no facts to ascertain. The Commission shows that its regulations permit applicants to seek amendments and waivers of, or exceptions to, its Rules. [Footnote 10] It adds:"This does not mean, of course, that the mere filing of an application for a waiver . . . would necessarily require the holding of a hearing, for, if that were the case, a rule would no longer be a rule. It means Page 351 U. S. 202 only that it might be an abuse of discretion to fail to hear a request for a waiver which showed, on its face, the existence of circumstances making application of the rule inappropriate."Respondent defends the position of the Court of Appeals. It urges that an application cannot be rejected under 47 U.S.C. § 309 without a "full hearing" to applicant. We agree that a "full hearing" under § 309 means that every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Cf. 5 U.S.C. § 1006(c). Such a hearing is essential for wise and just application of the authority of administrative boards and agencies.We do not read the hearing requirement, however, as withdrawing from the power of the Commission the rulemaking authority necessary for the orderly conduct of its business. As conceded by Storer,"Section 309(b) does not require the Commission to hold a hearing before denying a license to operate a station in ways contrary to those that the Congress has determined are in the public interest. [Footnote 11]"The challenged Rules contain limitations Page 351 U. S. 203 against licensing not specifically authorized by statute. But that is not the limit of the Commission's rulemaking authority. 47 U.S.C. § 154(i) and § 303(r) grant general rulemaking power not inconsistent with the Act or law.This Commission, like other agencies, deals with the public interest. Scripps-Howard Radio v. Federal Communications Commission, 316 U. S. 4, 316 U. S. 14. Its authority covers new and rapidly developing fields. Congress sought to create regulation for public protection with careful provision to assure fair opportunity for open competition in the use of broadcasting facilities. Accordingly, we cannot interpret § 309(b) as barring rules that declare a present intent to limit the number of stations consistent with a permissible "concentration of control." It is but a rule that announces the Commission's attitude on public protection against such concentration. [Footnote 12] The Communications Act must be read as a whole and with appreciation of the responsibilities of the body charged with its fair and efficient operation. The growing complexity of our economy induced the Congress to place regulation of businesses like communication in specialized agencies with broad powers. Courts are slow to interfere with their conclusions when reconcilable with statutory directions. [Footnote 13] We think the Multiple Ownership Rules, as adopted, are reconcilable with the Communications Page 351 U. S. 204 Act as a whole. An applicant files his application with knowledge of the Commission's attitude toward concentration of control.In National Broadcasting Co. v. United States, 319 U. S. 190, similar rules prohibiting certain methods of chain broadcasting were upheld despite a claim that the Rules caused licenses to be denied without "examination of written applications presented . . . as required by §§ 308 and 309." Id. at 319 U. S. 230. [Footnote 14] The National Broadcasting case validated numerous regulations couched in the prohibitory language of the present regulations. The one in the margin will serve as an example. [Footnote 15]In the National Broadcasting case, we called attention to the necessity for flexibility in the Rules there involved. Page 351 U. S. 205 The"Commission provided that 'networks will be given full opportunity, on proper application for new facilities or renewal of existing licenses, to call to our attention any reasons why the principle should be modified or held inapplicable.'"Id. at 319 U. S. We said:"The Commission therefore did not bind itself inflexibly to the licensing policies expressed in the Regulations. In each case that comes before it, the Commission must still exercise an ultimate judgment whether the grant of a license would serve the 'public interest, convenience, or necessity.' If time and changing circumstances reveal that the 'public interest' is not served by application of the Regulations, it must be assumed that the Commission will act in accordance with its statutory obligations."Id. at 319 U. S. 225. That flexibility is here under the present § 309(a) and (b) and the FCC's regulations. See n 10, supra. We read the Act and Regulations as providing a "full hearing" for applicants who have reached the existing limit of stations, upon their presentation of applications conforming to Rules 1.361(c) and 1.702, that set out adequate reasons why the Rules should be waived or amended. The Act, considered as a whole, requires no more. We agree with the contention of the Commission that a full hearing, such as is required by § 309(b), note 5 supra, would not be necessary on all such applications. As the Commission has promulgated its Rules after extensive administrative hearings, it is necessary for the accompanying papers to set forth reasons, sufficient if true, to justify a change or waiver of the Rules. We do not think Congress intended the Commission to waste time on applications that do not state a valid basis for a hearing. If any applicant is aggrieved by a refusal, the way for review is open. Page 351 U. S. 206We reverse the judgment of the Court of Appeals, and remand the case to that court so that it may consider respondent's other objections to the Multiple Ownership Rules.Reversed | U.S. Supreme CourtUnited States v. Storer Broadcasting Co., 351 U.S. 192 (1956)United States v. Storer Broadcasting Co.No. 94Argued February 28-29, 1956Decided May 21, 1956351 U.S. 192SyllabusAfter rulemaking proceedings under the Communications Act of 1934, as amended, in which respondent appeared, filed written objections and argued orally, the Federal Communications Commission amended its rules so as to provide, in effect, that it would issue no license for an additional television broadcast station to any party already having five such stations. On the same day, applying this rule, the Commission dismissed, without hearing, respondent's application for a license for an additional television broadcast station, because respondent already had five such stations. Under the Communications Act, the Administrative Procedure Act and 5 U.S.C. § 1034, respondent applied to the Court of Appeals for review of the Commission's order amending its rule.Held:1. Though the question of respondent's right to appeal was not raised by either party or by the Court of Appeals, it may be considered by this Court. P. 351 U. S. 197.2. Respondent had standing to bring this action. Pp. 351 U. S. 198-200.(a) The process of rulemaking having been completed, the amended rules constituted final agency action within the meaning of the Administrative Procedure Act. Pp. 351 U. S. 198-199.(b) The amended rules presently "aggrieve" respondent. Pp. 351 U. S. 199-200.3. Section 309(b) of the Communications Act, which requires a "full hearing" before denial of an application for a license, does not prevent the Commission from adopting the rules here involved limiting the number of broadcast stations that will be licensed to any one party. Pp. 351 U. S. 200-206.(a) Section 309 (b) entitles each applicant for a license to a "full hearing," including the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. P. 351 U. S. 202.(b) However, § 309(b) does not withdraw from the Commission the rulemaking authority necessary for the orderly conduct of its business. Pp. 351 U. S. 202-203. Page 351 U. S. 193(c) Nor does § 309(b) bar rules that declare a present intent to limit the number of stations consistent with a permissible "concentration of control." Pp. 351 U. S. 203-205.(d) The Act and rules are to be read as providing a "full hearing" for applicants who have reached the existing limit of stations, upon presentation of proper applications that set out adequate reasons why the rules should be waived or amended. The Act, considered as a whole, requires no more. P. 351 U. S. 205.95 U.S.App.D.C. 97, 220 F.2d 204, reversed and remanded. |
350 | 1976_75-1906 | MR. JUSTICE STEVENS delivered the opinion of the Court.Respondent is in petitioner's custody pursuant to a conviction for second-degree murder. The question presented to us is whether the New York State trial judge's failure to instruct the jury on the issue of causation was constitutional error requiring a Federal District Court to grant habeas corpus relief. Disagreeing with a divided panel of the Court of Appeals for the Second Circuit, we hold that it was not.On the evening of December 30, 1970, respondent and his codefendant encountered a thoroughly intoxicated man named Stafford in a bar in Rochester, N.Y. [Footnote 1] After observing Stafford display at least two $100 bills, [Footnote 2] they decided to rob him and agreed to drive him to a nearby town. While in the car, respondent slapped Stafford several times, took his money, and, in a search for concealed funds, forced Stafford to lower his trousers and remove his boots. They then abandoned him on an unlighted, rural road, still in a state of partial undress, and without his coat or his glasses. The temperature was near zero, visibility was obscured by blowing snow, and snow banks flanked the roadway. The time was between 9:30 and 9:40 p.m.At about 10 p.m., while helplessly seated in a traffic lane about a quarter mile from the nearest lighted building, Stafford was struck by a speeding pickup truck. The driver testified that while he was traveling 50 miles per hour in a 40-mile zone, the first of two approaching cars flashed its lights -- presumably as a warning which he did not understand. Immediately after the cars passed, the driver saw Stafford sitting in the road with his hands in the air. The driver neither swerved nor braked his vehicle before it hit Stafford. Stafford was pronounced dead upon arrival at the local hospital. Page 431 U. S. 148Respondent and his accomplice were convicted of grand larceny, robbery, and second-degree murder. [Footnote 3] Only the conviction of murder, as defined in N.Y. Penal Law § 125.25(2) (McKinney 1975), is now challenged. That statute provides that "[a] person is guilty of murder in the second degree" when,"[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person."(Emphasis added.)Defense counsel argued that it was the negligence of the truck driver, rather than the defendants' action, that had caused Stafford's death, and that the defendants could not have anticipated the fatal accident. [Footnote 4] On the other hand, the prosecution argued that the death was foreseeable, and would not have occurred but for the conduct of the defendants who Page 431 U. S. 149 therefore were the cause of death. [Footnote 5] Neither party requested the trial judge to instruct the jury on the meaning of the statutory requirement that the defendants' conduct "thereby cause[d] the death of another person," and no such instruction was given. The trial judge did, however, read the indictment and the statute to the jury, and explained the meaning of some of the statutory language. He advised the jury that a "person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists."App. 89 (emphasis added).The Appellate Division of the New York Supreme Court affirmed respondent's conviction. People v. Kibbe, 41 App.Div.2d 228, 342 N.Y.S.2d 386 (1973). Although respondent did not challenge the sufficiency of the instructions to the jury in that court, Judge Cardamone dissented on the ground that the trial court's charge did not explain the issue of causation Page 431 U. S. 150 or include an adequate discussion of the necessary mental state. That judge expressed the opinion that "the jury, upon proper instruction, could have concluded that the victim's death by an automobile was a remote and intervening cause." [Footnote 6]The New York Court of Appeals also affirmed. 35 N.Y.2d 407, 321 N.E.2d 773 (1974). It identified the causation issue as the only serious question raised by the appeal, and then rejected the contention that the conduct of the driver of the pickup truck constituted an intervening cause which relieved the defendants of criminal responsibility for Stafford's death. The court held that it was"not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt, as indeed it can be here said, that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused. [Footnote 7]"The court refused to consider the adequacy of the charge to the jury because that question had not been raised in the trial court. Page 431 U. S. 151Respondent then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of New York, relying on 28 U.S.C. § 2254. The District Court held that the respondent's attack on the sufficiency of the charge failed to raise a question of constitutional dimension and that, without more, "the charge is not reviewable in a federal habeas corpus proceeding." App. 21.The Court of Appeals for the Second Circuit reversed, 534 F.2d 493 (1976). In view of the defense strategy which consistently challenged the sufficiency of the proof of causation, the majority held that the failure to make any objection to the jury instructions was not a deliberate bypass precluding federal habeas corpus relief, [Footnote 8] but rather was an "obviously inadvertent" omission. Id. at 497. On the merits, the court held that, since the Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime, In re Winship, 397 U. S. 358, 397 U. S. 364, the failure to instruct the jury on an essential element as complex as the causation issue in this case created an impermissible risk that the jury had not made a finding that the Constitution requires. [Footnote 9] Page 431 U. S. 152Because the Court of Appeals decision appeared to conflict with this Court's holding in Cupp v. Naughten, 414 U. S. 141, we granted certiorari, 429 U. S. 81.Respondent argues that the decision of the Court of Appeals should be affirmed on either of two independent grounds: (1) that the omission of an instruction on causation created the danger that the jurors failed to make an essential factual determination as required by Winship; or (2) assuming that they did reach the causation question, they did so without adequate guidance and might have rendered a different verdict under proper instructions. A fair evaluation of the omission in the context of the entire record requires rejection of both arguments. [Footnote 10] Page 431 U. S. 153IThe Court has held"that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."In re Winship, supra, at 397 U. S. 364. One of the facts which the New York statute required the prosecution to prove is that the defendants' conduct caused the death of Stafford. As the New York Court of Appeals held, the evidence was plainly sufficient to prove that fact beyond a reasonable doubt. It is equally clear that the record requires us to conclude that the jury made such a finding.There can be no question about the fact that the jurors were informed that the case included a causation issue that they had to decide. The element of causation was stressed in the arguments of both counsel. The statutory language, which the trial judge read to the jury, expressly refers to the requirement that defendants' conduct "cause[d] the death of another person." The indictment tracks the statutory language; it was read to the jurors, and they were given a copy for use during their deliberations. The judge instructed the jury that all elements of the crime must be proved beyond a reasonable doubt. Whether or not the arguments of counsel correctly characterized the law applicable to the causation issue, they surely made it clear to the jury that such an issue Page 431 U. S. 154 had to be decided. It follows that the objection predicated on this Court's holding in Winship is without merit.IIAn appraisal of the significance of an error in the instructions to the jury requires a comparison of the instructions which were actually given with those that should have been given. Orderly procedure requires that the respective adversaries' views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. [Footnote 11] It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court. [Footnote 12]The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. [Footnote 13] The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U.S. at 414 U. S. 147, not merely whether "the instruction is undesirable, erroneous, or even universally condemned,'" id. at 414 U. S. 146. Page 431 U. S. 155In this case, the respondent's burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation -- beyond the reading of the statutory language itself -- of the causation element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law. Since this omission escaped notice on the record until Judge Cardamone filed his dissenting opinion at the intermediate appellate level, the probability that it substantially affected the jury deliberations seems remote.Because respondent did not submit a draft instruction on the causation issue to the trial judge, and because the New York courts apparently had no previous occasion to construe this aspect of the murder statute, we cannot know with certainty precisely what instruction should have been given as a matter of New York law. We do know that the New York Court of Appeals found no reversible error in this case; and its discussion of the sufficiency of the evidence gives us guidance about the kind of causation instruction that would have been acceptable.The New York Court of Appeals concluded that the evidence of causation was sufficient because it can be said beyond a reasonable doubt that the "ultimate harm" was "something which should have been foreseen as being reasonably related to the acts of the accused." It is not entirely clear whether the court's reference to "ultimate harm" merely required that Stafford's death was foreseeable, or, more narrowly, that his death by a speeding vehicle was foreseeable. [Footnote 14] In either event, the court was satisfied that the "ultimate harm" was one which "should have been foreseen." Thus, an adequate instruction would have told the jury that, if the Page 431 U. S. 156 ultimate harm should have been foreseen as being reasonably related to defendants' conduct, that conduct should be regarded as having caused the death of Stafford.The significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given. One of the elements of respondent's offense is that he acted "recklessly," supra at 431 U. S. 148, 431 U. S. 149. By returning a guilty verdict, the jury necessarily found, in accordance with its instruction on recklessness, that respondent was "aware of and consciously disregard[ed] a substantial and unjustifiable risk" [Footnote 15] that death would occur. A person who is "aware of and consciously disregards" a substantial risk must also foresee the ultimate harm that the risk entails. Thus, the jury's determination that the respondent acted recklessly necessarily included a determination that the ultimate harm was foreseeable to him.In a strict sense, an additional instruction on foreseeability would not have been cumulative because it would have related to an element of the offense not specifically covered in the instructions given. But since it is logical to assume that the jurors would have responded to an instruction on causation consistently with their determination of the issues that were comprehensively explained, it is equally logical to conclude that such an instruction would not have affected their verdict. [Footnote 16] Accordingly, we reject the suggestion that the omission of more complete instructions on the causation issue "so Page 431 U. S. 157 infected the entire trial that the resulting conviction violated due process." Even if we were to make the unlikely assumption that the jury might have reached a different verdict pursuant to an additional instruction, that possibility is too speculative to justify the conclusion that constitutional error was committed.The judgment is reversed.It is so ordered | U.S. Supreme CourtHenderson v. Kibbe, 431 U.S. 145 (1977)Henderson v. KibbeNo. 75-1906Argued March 1, 1977Decided May 16, 1977431 U.S. 145SyllabusRespondent and his codefendant, after robbing an intoxicated man in their car, abandoned him at night on an unlighted, rural road where the visibility was obscured by blowing snow. Twenty or thirty minutes later, while helplessly seated in the road, the man was struck and killed by a speeding truck. Respondent and his accomplice were subsequently convicted in a New York trial court of grand larceny, robbery, and second-degree murder. A New York statute provides that a person is guilty of second-degree murder when,"[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person."Although the element of causation was stressed in the arguments of both defense counsel and the prosecution at the trial, neither party requested an instruction on the meaning of the "thereby causes" language of the statute and none was given. The trial judge, however, did read to the jury the statute and the indictment tracking the statutory language, and advised the jury that all elements of the crime charged must be proved beyond a reasonable doubt, and that a"person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur."Respondent's conviction was upheld on appeal, the New York Court of Appeals rejecting the argument that the truck driver's conduct constituted an intervening cause that relieved the defendants of criminal responsibility for the victim's death. Respondent then filed a habeas corpus petition in Federal District Court, which refused to review, as not raising a question of constitutional dimension, respondent's attack on the sufficiency of the jury charge. The Court of Appeals reversed, holding, on the authority of In re Winship, 397 U. S. 358, that, since the Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime charged, the failure to instruct the jury on an essential element as complex as the causation issue in this case created an impermissible risk that the jury had not made a finding that the Constitution requires. Page 431 U. S. 146Held: The trial judge's failure to instruct the jury on he issue of causation was not constitutional error requiring the District Court to grant habeas corpus relief. Pp. 431 U. S. 153-157.(a) The omission of the causation instruction did not create a danger that the jury failed to make an essential factual determination as required by Winship, supra, where there can be no question from the record that the jurors were informed that the issue of causation was an element which required decision, and where they were instructed that all elements of the crime must be proved beyond a reasonable doubt. Pp. 431 U. S. 153-154.(b) The opinion of the New York Court of Appeals makes it clear that an adequate instruction would have told the jury that, if the ultimate harm should have been foreseen as being reasonably related to the defendants' conduct, that conduct should be regarded as having caused the victim's death. There is no reason to believe that the jury would have reached a different verdict if such an instruction had been given. By returning a guilty verdict the jury necessarily found, in accordance with the trial court's instruction on recklessness, that respondent was "aware of and consciously disregarded a substantial and unjustifiable risk" that death would occur. This finding logically included a determination that the ultimate harm was foreseeable. Pp. 431 U. S. 154-157.534 F.2d 493, reversed.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. BURGER, C.J., filed an opinion concurring in the judgment, post, p. 431 U. S. 157. REHNQUIST, J., took no part in the consideration or decision of the case. Page 431 U. S. 147 |
351 | 1983_82-975 | JUSTICE STEVENS delivered the opinion of the Court.Section 28.04 of the Los Angeles Municipal Code prohibits the posting of signs on public property. [Footnote 1] The question presented Page 466 U. S. 792 is whether that prohibition abridges appellees' freedom of speech within the meaning of the First Amendment. [Footnote 2] In March, 1979, Roland Vincent was a candidate for election to the Los Angeles City Council. A group of his supporters known as Taxpayers for Vincent (Taxpayers) entered into a contract with a political sign service company known as Candidates' Outdoor Graphics Service (COGS) to fabricate and post signs with Vincent's name on them. COGS produced 15- by-44-inch cardboard signs and attached them to utility poles at various locations by draping them over crosswires Page 466 U. S. 793 which support the poles and stapling the cardboard together at the bottom. The signs' message was: "Roland Vincent -- City Council."Acting under the authority of § 28.04 of the Municipal Code, employees of the city's Bureau of Street Maintenance routinely removed all posters attached to utility poles and similar objects covered by the ordinance, including the COGS signs. The weekly sign removal report covering the period March 1-March 7, 1979, indicated that among the 1,207 signs removed from public property during that week, 48 were identified as "Roland Vincent" signs. Most of the other signs identified in that report were apparently commercial in character. [Footnote 3]On March 12, 1979, Taxpayers and COGS filed this action in the United States District Court for the Central District of California, naming the city, the Director of the Bureau of Street Maintenance, and members of the City Council as defendants. [Footnote 4] They sought an injunction against enforcement of the ordinance, as well as compensatory and punitive damages. After engaging in discovery, the parties filed cross-motions for summary judgment on the issue of liability. The District Court entered findings of fact, concluded that the ordinance was constitutional, and granted the City's motion.The District Court's findings do not purport to resolve any disputed issue of fact; instead, they summarize material in the record that appears to be uncontroverted. The findings recite that the principal responsibility for locating and removing Page 466 U. S. 794 signs and handbills posted in violation of § 28.04 is assigned to the Street Use Inspection Division of the city's Bureau of Street Maintenance. The court found that both political and nonpolitical signs are illegally posted, and that they are removed "without regard to their content." [Footnote 5]After explaining the purposes for which the City's zoning code had been enacted and noting that the prohibition in § 28.04 furthered those purposes, the District Court found that the large number of illegally posted signs "constitute a clutter and visual blight." [Footnote 6] With specific reference to the posting of the COGS signs on utility pole crosswires, the District Court found that such posting"would add somewhat to the blight and inevitably would encourage greatly increased posting in other unauthorized and unsightly places. . . . [Footnote 7]"In addition, the District Court found that placing signs on utility poles creates a potential safety hazard, and that other violations of § 28.04 "block views and otherwise cause traffic hazards." [Footnote 8] Finally, the District Court concluded that the sign prohibition does not prevent taxpayers or COGS"from Page 466 U. S. 795 exercising their free speech rights on the public streets and in other public places; they remain free to picket and parade, to distribute handbills, to carry signs and to post their signs and handbills on their automobiles and on private property with the permission of the owners thereof. [Footnote 9]"In its conclusions of law, the District Court characterized the esthetic and economic interests in improving the beauty of the City "by eliminating clutter and visual blight" as "legitimate and compelling." [Footnote 10] Those interests, together with the interest in protecting the safety of workmen who must scale utility poles and the interest in eliminating traffic hazards, adequately supported the sign prohibition as a reasonable regulation affecting the time, place, and manner of expression.The Court of Appeals did not question any of the District Court's findings of fact, but it rejected some of its conclusions of law. The Court of Appeals reasoned that the ordinance was presumptively unconstitutional because significant First Amendment interests were involved. It noted that the City had advanced three separate justifications for the ordinance, but concluded that none of them was sufficient. The Court of Appeals held that the City had failed to make a sufficient showing that its asserted interests in esthetics and preventing visual clutter were substantial, because it had not offered to demonstrate that the City was engaged in a comprehensive effort to remove other contributions to an unattractive environment in commercial and industrial areas. The City's interest in minimizing traffic hazards was rejected because it was readily apparent that no substantial traffic problems would result from permitting the posting of certain kinds of signs on many of the publicly owned objects covered by the ordinance. Finally, while acknowledging that a flat prohibition against signs on certain objects such as fire hydrants and traffic signals would be a permissible method of preventing Page 466 U. S. 796 interference with the intended use of public property, and that regulation of the size, design, and construction of posters, or of the method of removing them, might be reasonable, the Court of Appeals concluded that the City had not justified its total ban. [Footnote 11]In its appeal to this Court, the City challenges the Court of Appeals' holding that § 28.04 is unconstitutional on its face. Taxpayers and COGS defend that holding, and also contend that the ordinance is unconstitutional as applied to their posting of political campaign signs on the crosswires of utility poles. There are two quite different ways in which a statute or ordinance may be considered invalid "on its face" -- either because it is unconstitutional in every conceivable application or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally "overbroad." We shall analyze the "facial" challenges to the ordinance, and then address its specific application to appellees.IThe seminal cases in which the Court held state legislation unconstitutional "on its face" did not involve any departure from the general rule that a litigant only has standing to vindicate his own constitutional rights. In Stromberg v. California, 283 U. S. 359 (1931), [Footnote 12] and Lovell v. Griffin, 303 U.S. Page 466 U. S. 797 444 (1938), [Footnote 13] the statutes were unconstitutional as applied to the defendants' conduct, but they were also unconstitutional on their face because it was apparent.that any attempt to enforce such legislation would create an unacceptable risk of the suppression of ideas. [Footnote 14] In cases of this character, a holding of facial invalidity expresses the conclusion that the statute Page 466 U. S. 798 could never be applied in a valid manner. Such holdings [Footnote 15] invalidated entire statutes, but did not create any exception from the general rule that constitutional adjudication requires a review of the application of a statute to the conduct of the party before the Court.Subsequently, however, the Court did recognize an exception to this general rule for laws that are written so broadly that they may inhibit the constitutionally protected speech of third parties. This "overbreadth" doctrine has its source in Thornhill v. Alabama, 310 U. S. 88 (1940). In that case, the Court concluded that the very existence of some broadly written statutes may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected. [Footnote 16] The Court Page 466 U. S. 799 has repeatedly held that such a statute may be challenged on its face even though a more narrowly drawn statute would be valid as applied to the party in the case before it. [Footnote 17] This exception from the general rule is predicated on"a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression."Broadrick v. Oklahoma, 413 U. S. 601, 413 U. S. 612 (1973).In the development of the overbreadth doctrine, the Court has been sensitive to the risk that the doctrine itself might sweep so broadly that the exception to ordinary standing requirements would swallow the general rule. In order to decide whether the overbreadth exception is applicable in a particular case, we have weighed the likelihood that the statute's very existence will inhibit free expression."[T]here comes a point where that effect -- at best a prediction -- cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a Page 466 U. S. 800 statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep."Broadrick v. Oklahoma, 413 U.S. at 413 U. S. 615 (citation omitted). [Footnote 18]The concept of "substantial overbreadth" is not readily reduced to an exact definition. It is clear, however, that the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. [Footnote 19] On the contrary, the requirement of substantial overbreadth stems from the underlying justification for the overbreadth exception itself -- the interest in preventing an invalid statute from inhibiting the speech of third parties who are not before the Court."The requirement of substantial overbreadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation, Page 466 U. S. 801 has the potential to repeatedly chill the exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the regulation."New York v. Ferber, 458 U. S. 747, 458 U. S. 772 (1982) (footnote omitted).In short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds. See Erznoznik v. City of Jacksonville, 422 U. S. 205, 422 U. S. 216 (1975). See also Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 436 U. S. 462, n. 20 (1978); Parker v. Levy, 417 U. S. 733, 417 U. S. 760-761 (1974).The Court of Appeals concluded that the ordinance was vulnerable to an overbreadth challenge because it was an "overinclusive" response to traffic concerns, and not the "least drastic means" of preventing interference with the normal use of public property. This conclusion rested on an evaluation of the assumed effect of the ordinance on third parties, rather than on any specific consideration of the impact of the ordinance on the parties before the court. This is not, however, an appropriate case to entertain a facial challenge based on overbreadth. For we have found nothing in the record to indicate that the ordinance will have any different impact on any third parties' interests in free speech than it has on Taxpayers and COGS.Taxpayers and COGS apparently would agree that the prohibition against posting signs on most of the publicly owned objects mentioned in the ordinance is perfectly reasonable. Thus, they do not dispute the City's power to proscribe the attachment of any handbill or sign to any sidewalk, crosswalk, curb, lamppost, hydrant, or lifesaving equipment. [Footnote 20] Their Page 466 U. S. 802 position with respect to utility poles is not entirely clear, but they do contend that it is unconstitutional to prohibit the attachment of their cardboard signs to the horizontal crosswires supporting utility poles during a political campaign. They have, in short, failed to identify any significant difference between their claim that the ordinance is invalid on overbreadth grounds and their claim that it is unconstitutional when applied to their political signs. Specifically, Taxpayers and COGS have not attempted to demonstrate that the ordinance applies to any conduct more likely to be protected by the First Amendment than their own crosswire signs. Indeed, the record suggests that many of the signs posted in violation of the ordinance are posted in such a way that they may create safety or traffic problems that COGS has tried to avoid. Accordingly, on this record, it appears that, if the ordinance may be validly applied to COGS, it can be validly applied to most if not all of the signs of parties not before the Court. Appellees have simply failed to demonstrate a realistic danger that the ordinance will significantly compromise recognized First Amendment protections of individuals not before the Court. It would therefore be inappropriate in this case to entertain an overbreadth challenge to the ordinance.Taxpayers and COGS do argue generally that the City's interest in eliminating visual blight is not sufficiently weighty to justify an abridgment of speech. If that were the only interest the ordinance advanced, then this argument would be analogous to the facial challenges involved in cases like Stromberg and Lovell. But as previously observed, appellees acknowledge that the ordinance serves safety interests in many of its applications, and hence do not argue that the ordinance can never be validly applied. Instead, appellees argue that they have placed their signs in locations where only the esthetic interest is implicated. In addition, they argue that they have developed an expertise in not "placing signs in offensive manners which will alienate its own clientele Page 466 U. S. 803 or their constituencies," [Footnote 21] and emphasize the special value of free communication during political campaigns, see Metromedia, Inc. v. San Diego, 453 U. S. 490, 453 U. S. 555 (1981) (STEVENS, J., dissenting in part); id. at 453 U. S. 550 (REHNQUIST, J., dissenting). In light of these arguments, appellees' attack on the ordinance is basically a challenge to the ordinance as applied to their activities. We therefore limit our analysis of the constitutionality of the ordinance to the concrete case before us, and now turn to the arguments that it is invalid as applied to the expressive activity of Taxpayers and COGS. [Footnote 22]IIThe ordinance prohibits appellees from communicating with the public in a certain manner, and presumably diminishes the total quantity of their communication in the City. [Footnote 23] The application of the ordinance to appellees' expressive activities surely raises the question whether the ordinance abridges their "freedom of speech" within the meaning of the First Amendment, and appellees certainly have standing to challenge the application of the ordinance to their own expressive activities."But to say the ordinance presents a Page 466 U. S. 804 First Amendment issue is not necessarily to say that it constitutes a First Amendment violation."Metromedia, Inc. v. San Diego, 453 U.S. at 453 U. S. 561 (BURGER, C.J., dissenting). It has been clear since this Court's earliest decisions concerning the freedom of speech that the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest. Schenck v. United States, 249 U. S. 47, 249 U. S. 52 (1919).As Stromberg and Lovell demonstrate, there are some purported interests -- such as a desire to suppress support for a minority party or an unpopular cause, or to exclude the expression of certain points of view from the marketplace of ideas -- that are so plainly illegitimate that they would immediately invalidate the rule. The general principle that has emerged from this line of cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others. See Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 463 U. S. 65, 463 U. S. 72 (1983); Consolidated Edison Co. v. Public Service Comm'n, 447 U. S. 530, 447 U. S. 535-536 (1980); Carey v. Brown, 447 U. S. 455, 447 U. S. 462-463 (1980); Young v. American Mini Theatres, Inc., 427 U. S. 50, 427 U. S. 63-65, 427 U. S. 67-68 (1976) (plurality opinion); Police Department of Chicago v. Mosley, 408 U. S. 92, 408 U. S. 95-96 (1972).That general rule has no application to this case. For there is not even a hint of bias or censorship in the City's enactment or enforcement of this ordinance. There is no claim that the ordinance was designed to suppress certain ideas that the City finds distasteful or that it has been applied to appellees because of the views that they express. The text of the ordinance is neutral -- indeed, it is silent -- concerning any speaker's point of view, and the District Court's findings indicate that it has been applied to appellees and others in an evenhanded manner.In United States v. O'Brien, 391 U. S. 367 (1968), the Court set forth the appropriate framework for reviewing a viewpoint-neutral regulation of this kind: Page 466 U. S. 805"[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."Id. at 391 U. S. 377.It is well settled that the state may legitimately exercise its police powers to advance esthetic values. Thus, in Berman v. Parker, 348 U. S. 26, 348 U. S. 32-33 (1954), in referring to the power of the legislature to remove blighted housing, this Court observed that such housing may be "an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn." Ibid. We concluded:"The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary."Id. at 348 U. S. 33 (citation omitted). See also Penn Central Transportation Co. v. New York City, 438 U. S. 104, 438 U. S. 129 (1978); Village of Belle Terre v. Boraas, 416 U. S. 1, 416 U. S. 9 (1974); Euclid v. Ambler Co., 272 U. S. 365, 272 U. S. 387-388 (1926); Welch v. Swasey, 214 U. S. 91, 214 U. S. 108 (1909).In this case, taxpayers and COGS do not dispute that it is within the constitutional power of the City to attempt to improve its appearance, or that this interest is basically unrelated to the suppression of ideas. Therefore the critical inquiries are whether that interest is sufficiently substantial to justify the effect of the ordinance on appellees' expression, and whether that effect is no greater than necessary to accomplish the City's purpose.IIIIn Kovacs v. Cooper, 336 U. S. 77 (1949), the Court rejected the notion that a city is powerless to protect its citizens from unwanted exposure to certain methods of expression which may legitimately be deemed a public nuisance. Page 466 U. S. 806 In upholding an ordinance that prohibited loud and raucous sound trucks, the Court held that the State had a substantial interest in protecting its citizens from unwelcome noise. [Footnote 24] In Lehman v. City of Shaker Heights, 418 U. S. 298 (1974), the Court upheld the city's prohibition of political advertising on its buses, stating that the city was entitled to protect unwilling viewers against intrusive advertising that may interfere with the city's goal of making its buses "rapid, convenient, pleasant, and inexpensive," id. at 418 U. S. 302-303 (plurality opinion). See also id. at 418 U. S. 307 (Douglas, J., concurring in judgment); Erznoznik v. City of Jacksonville, 422 U.S. at 422 U. S. 209, and n. 5. These cases indicate that the municipalities have a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression.Metromedia, Inc. v. San Diego, supra, dealt with San Diego's prohibition of certain forms of outdoor billboards. There the Court considered the city's interest in avoiding visual clutter, and seven Justices explicitly concluded Page 466 U. S. 807 that this interest was sufficient to justify a prohibition of billboards, see id. at 453 U. S. 507-508, 453 U. S. 510 (opinion of WHITE, J., joined by Stewart, MARSHALL, and POWELL, JJ.); id. at 453 U. S. 552 (STEVENS, J., dissenting in part); id. at 453 U. S. 559-561 (BURGER, C.J., dissenting); id. at 453 U. S. 570 (REHNQUIST, J., dissenting). [Footnote 25] JUSTICE WHITE, writing for the plurality, expressly concluded that the city's esthetic interests were sufficiently substantial to provide an acceptable justification for a content-neutral prohibition against the use of billboards; San Diego's interest in its appearance was undoubtedly a substantial governmental goal. Id. at 453 U. S. 507-508. [Footnote 26]We reaffirm the conclusion of the majority in Metromedia. The problem addressed by this ordinance -- the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property -- constitutes a significant substantive evil within the City's power to prohibit. "[T]he city's interest in attempting to preserve [or improve] the quality of urban life is one that must be accorded high respect." Young v. American Mini Theatres, Inc., 427 U.S. at 427 U. S. 71 (plurality opinion). Page 466 U. S. 808IVWe turn to the question whether the scope of the restriction on appellees' expressive activity is substantially broader than necessary to protect the City's interest in eliminating visual clutter. The incidental restriction on expression which results from the City's attempt to accomplish such a purpose is considered justified as a reasonable regulation of the time, place, or manner of expression if it is narrowly tailored to serve that interest. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 452 U. S. 647-648 (1981); Schad v. Mount Ephraim, 452 U. S. 61, 452 U. S. 68-71 (1981); Carey v. Brown, 447 U.S. at 447 U. S. 470-471 (1980); Grayned v. City of Rockford, 408 U. S. 104, 408 U. S. 115-117 (1972); Police Department of Chicago v. Mosley, 408 U.S. at 408 U. S. 98. The District Court found that the signs prohibited by the ordinance do constitute visual clutter and blight. By banning these signs, the City did no more than eliminate the exact source of the evil it sought to remedy. [Footnote 27] The plurality wrote in Metromedia:"It is not speculative to recognize that billboards, by their very nature, wherever located and however constructed, can be perceived as an 'esthetic harm.'"453 U.S. at 453 U. S. 510. The same is true of posted signs.It is true that the esthetic interest in preventing the kind of litter that may result from the distribution of leaflets on the public streets and sidewalks cannot support a prophylactic prohibition against the citizen's exercise of that method of expressing his views. In Schneider v. State, 308 U. S. 147 (1939), the Court held that ordinances that absolutely prohibited handbilling on the streets were invalid. The Court explained that cities could adequately protect the esthetic interest Page 466 U. S. 809 in avoiding litter without abridging protected expression merely by penalizing those who actually litter. See id. at 308 U. S. 162. Taxpayers contend that their interest in supporting Vincent's political campaign, which affords them a constitutional right to distribute brochures and leaflets on the public streets of Los Angeles, provides equal support for their asserted right to post temporary signs on objects adjacent to the streets and sidewalks. They argue that the mere fact that their temporary signs "add somewhat" to the city's visual clutter is entitled to no more weight than the temporary unsightliness of discarded handbills and the additional streetcleaning burden that were insufficient to justify the ordinances reviewed in Schneider.The rationale of Schneider is inapposite in the context of the instant case. There, individual citizens were actively exercising their right to communicate directly with potential recipients of their message. The conduct continued only while the speakers or distributors remained on the scene. In this case, appellees posted dozens of temporary signs throughout an area where they would remain unattended until removed. As the Court expressly noted in Schneider, the First Amendment does not"deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty, since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion."308 U.S. at 308 U. S. 160-161. In short, there is no constitutional impediment to "the punishment of those who actually throw papers on the streets." Id. at 308 U. S. 162. A distributor of leaflets has no right simply to scatter his pamphlets in the air -- or to toss large quantities of paper from the window of a tall building or a low-flying airplane. Characterizing such an activity as a separate means of communication does not diminish the State's power to condemn it as a public nuisance. The right recognized in Page 466 U. S. 810 Schneider is to tender the written material to the passerby who may reject it or accept it, and who thereafter may keep it, dispose of it properly, or incur the risk of punishment if he lets it fall to the ground. One who is rightfully on a street open to the public"carries with him there as elsewhere the constitutional right to express his views in an orderly fashion. This right extends to the communication of ideas by handbills and literature, as well as by the spoken word."Jamison v. Texas, 318 U. S. 413, 318 U. S. 416 (1943); see also Cox v. Louisiana, 379 U. S. 559, 379 U. S. 578 (1965) (Black, J., dissenting in part).With respect to signs posted by appellees, however, it is the tangible medium of expressing the message that has the adverse impact on the appearance of the landscape. In Schneider, an antilittering statute could have addressed the substantive evil without prohibiting expressive activity, whereas application of the prophylactic rule actually employed gratuitously infringed upon the right of an individual to communicate directly with a willing listener. Here, the substantive evil -- visual blight -- is not merely a possible byproduct of the activity, but is created by the medium of expression itself. In contrast to Schneider, therefore, the application of the ordinance in this case responds precisely to the substantive problem which legitimately concerns the City. The ordinance curtails no more speech than is necessary to accomplish its purpose.VThe Court of Appeals accepted the argument that a prohibition against the use of unattractive signs cannot be justified on esthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located. A comparable argument was categorically rejected in Metromedia. In that case, it was argued that the city could not simultaneously permit billboards to be used for on-site advertising and also justify the prohibition against off-site advertising on esthetic grounds, since both types of advertising were equally unattractive. Page 466 U. S. 811 The Court held, however, that the city could reasonably conclude that the esthetic interest was outweighed by the countervailing interest in one kind of advertising, even though it was not outweighed by the other. [Footnote 28] So here, the validity of the esthetic interest in the elimination of signs on public property is not compromised by failing to extend the ban to private property. The private citizen's interest in controlling the use of his own property justifies the disparate treatment. Moreover, by not extending the ban to all locations, a significant opportunity to communicate by means of temporary signs is preserved, and private property owners' esthetic concerns will keep the posting of signs on their property within reasonable bounds. Even if some visual blight remains, a partial, content-neutral ban may nevertheless enhance the City's appearance.Furthermore, there is no finding that, in any area where appellees seek to place signs, there are already so many signs posted on adjacent private property that the elimination of appellees' signs would have an inconsequential effect on the esthetic values with which the City is concerned. There is simply no predicate in the findings of the District Court for Page 466 U. S. 812 the conclusion that the prohibition against the posting of appellees' signs fails to advance the City's esthetic interest.VIWhile the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places, Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. at 452 U. S. 647, a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate. See, e.g., United States v. Grace, 461 U. S. 171, 461 U. S. 177 (1983); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. at 452 U. S. 654-655; Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. at 447 U. S. 535; Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 431 U. S. 93 (1977). The Los Angeles ordinance does not affect any individual's freedom to exercise the right to speak and to distribute literature in the same place where the posting of signs on public property is prohibited. [Footnote 29] To the extent that the posting of signs on public property has advantages over these forms of expression, see, e.g., Talley v. California, 362 U. S. 60, 362 U. S. 64-65 (1960), there is no reason to believe that these same advantages cannot be obtained through other means. To the contrary, the findings of the District Court indicate that there are ample alternative modes of communication in Los Angeles. Notwithstanding appellees' general assertions in their brief concerning the utility of political posters, nothing in the findings indicates that the posting of political posters on public property is a uniquely valuable or important mode of communication, or that appellees' ability to communicate effectively is threatened by ever-increasing restrictions on expression. [Footnote 30] Page 466 U. S. 813VIIAppellees suggest that the public property covered by the ordinance either is itself a "public forum" for First Amendment purposes or at least should be treated in the same respect as the "public forum" in which the property is located. "Traditional public forum property occupies a special position in terms of First Amendment protection," United States v. Grace, 461 U.S. at 461 U. S. 180, and appellees maintain that their sign-posting activities are entitled to this protection.In Hague v. CIO, 307 U. S. 496, 307 U. S. 515-516 (1939) (opinion of Roberts, J.), it was recognized:"Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and Page 466 U. S. 814 good order; but it must not, in the guise of regulation, be abridged or denied."See also Grayned v. City of Rockford, 408 U.S. at 408 U. S. 115; Shuttlesworth v. City of Birmingham, 394 U. S. 147, 394 U. S. 152 (1969); Kunz v. New York, 340 U. S. 290, 340 U. S. 293 (1951); Schneider v. State, 308 U.S. at 308 U. S. 163.Appellees' reliance on the public forum doctrine is misplaced. They fail to demonstrate the existence of a traditional right of access respecting such items as utility poles for purposes of their communication comparable to that recognized for public streets and parks, and it is clear that"the First Amendment does not guarantee access to government property simply because it is owned or controlled by the government."United States Postal Service v. Greenburgh Civic Assns., 453 U. S. 114, 453 U. S. 129 (1981). Rather, theexistence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue.Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 460 U. S. 44 (1983).Lampposts can, of course, be used as signposts, but the mere fact that government property can be used as a vehicle for communication does not mean that the Constitution requires such uses to be permitted. Cf. United States Postal Service v. Greenburgh Civic Assns., 453 U.S. at 453 U. S. 131. [Footnote 31] Public property which is not by tradition or designation a forum for Page 466 U. S. 815 public communication may be reserved by the State"for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view."Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. at 460 U. S. 46. Given our analysis of the legitimate interest served by the ordinance, its viewpoint neutrality, and the availability of alternative channels of communication, the ordinance is certainly constitutional as applied to appellees under this standard. [Footnote 32]VIIIFinally, Taxpayers and COGS argue that Los Angeles could have written an ordinance that would have had a less severe effect on expressive activity such as theirs by permitting the posting of any kind of sign at any time on some types of public property, or by making a variety of other more specific exceptions to the ordinance: for signs carrying certain types of messages (such as political campaign signs), for signs posted during specific time periods (perhaps during political campaigns), for particular locations (perhaps for areas already cluttered by an excessive number of signs on adjacent private property), or for signs meeting design specifications (such as size or color). Plausible public policy arguments Page 466 U. S. 816 might well be made in support of any such exception, but it by no means follows that it is therefore constitutionally mandated, cf. Singer v. United States, 380 U. S. 24, 380 U. S. 34-35 (1965), nor is it clear that some of the suggested exceptions would even be constitutionally permissible. For example, even though political speech is entitled to the fullest possible measure of constitutional protection, there are a host of other communications that command the same respect. An assertion that "Jesus Saves," that "Abortion is Murder," that every woman has the "Right to Choose," or that "Alcohol Kills" may have a claim to a constitutional exemption from the ordinance that is just as strong as "Roland Vincent -- City Council." See Abood v. Detroit Board of Education, 431 U. S. 209, 431 U. S. 231-232 (1977). [Footnote 33] To create an exception for appellees' political speech and not these other types of speech might create a risk of engaging in constitutionally forbidden content discrimination. See, e.g., Carey v. Brown, 447 U. S. 455 (1980); Police Department of Chicago v. Mosley, 408 U. S. 92 (1972). Moreover, the volume of permissible postings under such a mandated exemption might so limit the ordinance's effect as to defeat its aim of combating visual blight.Any constitutionally mandated exception to the City's total prohibition against temporary signs on public property would necessarily rest on a judicial determination that the City's traffic control and safety interests had little or no applicability within the excepted category, and that the City's interests in esthetics are not sufficiently important to justify the prohibition in that category. But the findings of the District Court provide no basis for questioning the substantiality of the esthetic interest at stake, or for believing that a uniquely important form of communication has been abridged for the categories of expression engaged in by Taxpayers and COGS. Therefore, we accept the City's position that it may decide that the esthetic interest in avoiding "visual clutter" justifies Page 466 U. S. 817 a removal of signs creating or increasing that clutter. The findings of the District Court that COGS signs add to the problems addressed by the ordinance and, if permitted to remain, would encourage others to post additional signs, are sufficient to justify application of the ordinance to these appellees.As recognized in Metromedia, if the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, "then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them." 453 U.S. at 453 U. S. 508. As is true of billboards, the esthetic interests that are implicated by temporary signs are presumptively at work in all parts of the city, including those where appellees posted their signs, and there is no basis in the record in this case upon which to rebut that presumption. These interests are both psychological and economic. The character of the environment affects the quality of life and the value of property in both residential and commercial areas. We hold that, on this record, these interests are sufficiently substantial to justify this content-neutral, impartially administered prohibition against the posting of appellees' temporary signs on public property, and that such an application of the ordinance does not create an unacceptable threat to the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 270 (1964). [Footnote 34]The judgment of the Court of Appeals is reversed, and the case is remanded to that Court.It is so ordered | U.S. Supreme CourtCity Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)Members of the City Council of the City of Los Angeles v.Taxpayers for VincentNo. 82-975Argued October 12, 1983Decided May 15, 1984466 U.S. 789SyllabusSection 28.04 of the Los Angeles Municipal Code prohibits the posting of signs on public property. Appellee Taxpayers for Vincent, a group of supporters of a candidate for election to the Los Angeles City Council, entered into a contract with appellee Candidates' Outdoor Graphics Service (COGS) to fabricate and post signs with the candidate's name on them. COGS produced cardboard signs and attached them to utility pole crosswires at various locations. Acting under § 28.04, city employees routinely removed all posters (including the COGS signs) attached to utility poles and similar objects covered by the ordinance. Appellees then filed suit in Federal District Court against appellants, the city and various city officials (hereafter City), alleging that § 28.04 abridged appellees' freedom of speech within the meaning of the First Amendment, and seeking damages and injunctive relief. The District Court entered findings of fact, concluded that § 28.04 was constitutional, and granted the City's motion for summary judgment. The Court of Appeals reversed, reasoning that the ordinance was presumptively unconstitutional because significant First Amendment interests were involved, and that the City had not justified its total ban on all signs on the basis of its asserted interests in preventing visual clutter, minimizing traffic hazards, and preventing interference with the intended use of public property.Held:1. The "overbreadth" doctrine is not applicable here. There is nothing in the record to indicate that § 28.04 will have any different impact on any third parties' interests in free speech than it has on appellees' interests, and appellees have failed to identify any significant difference between their claim that § 28.04 is invalid on overbreadth grounds and their claim that it is unconstitutional when applied to their signs during a political campaign. Thus, it is inappropriate to entertain an overbreadth challenge to § 28.04. Pp. 466 U. S. 796-803.2. Section 28.04 is not unconstitutional as applied to appellees' expressive activity. Pp. 466 U. S. 803-817.(a) The general principle that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas Page 466 U. S. 790 at the expense of others is not applicable here. Section 28.04's text is neutral -- indeed it is silent -- concerning any speaker's point of view, and the District Court's findings indicate that it has been applied to appellees and others in an evenhanded manner. It is within the City's constitutional power to attempt to improve its appearance, and this interest is basically unrelated to the suppression of ideas. Cf. United States v. O'Brien, 391 U. S. 367, 391 U. S. 377. Pp. 466 U. S. 803-805.(b) Municipalities have a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression. The problem addressed by § 28.04 -- the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property -- constitutes a significant substantive evil within the City's power to prohibit. Metromedia, Inc. v. San Diego, 453 U. S. 490. Pp. 466 U. S. 805-807.(c) Section 28.04 curtails no more speech than is necessary to accomplish its purpose of eliminating visual clutter. By banning posted signs, the City did no more than eliminate the exact source of the evil it sought to remedy. The rationale of Schneider v. State, 308 U. S. 147, which held that ordinances that absolutely prohibited handbilling on public streets and sidewalks were invalid, is inapposite in the context of the instant case. Pp. 466 U. S. 808-810.(d) The validity of the City's esthetic interest in the elimination of signs on public property is not compromised by failing to extend the ban to private property. The private citizen's interest in controlling the use of his own property justifies the disparate treatment, and there is no predicate in the District Court's findings for the conclusion that the prohibition against the posting of appellees' signs fails to advance the City's esthetic interest. Pp. 466 U. S. 810-812.(e) While a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate, § 28.04 does not affect any individual's freedom to exercise the right to speak and to distribute literature in the same place where the posting of signs on public property is prohibited. The District Court's findings indicate that there are ample alternative modes of communication in Los Angeles. P. 466 U. S. 812.(f) There is no merit in appellees' suggestion that the property covered by § 28.04 either is itself a "public forum," subject to special First Amendment protection, or at least should be treated in the same respect as the "public forum" in which the property is located. The mere fact that government property can be used as a vehicle for communication -- such as the use of lampposts as signposts -- does not mean that the Constitution requires such use to be permitted. Public property which is not, by tradition or designation, a forum for public communication may be reserved by the government for its intended purposes, communicative or otherwise, if the regulation on speech (as here) is reasonable and not an Page 466 U. S. 791 effort to suppress expression merely because public officials oppose the speaker's view. Pp. 466 U. S. 813-815.(g) Although plausible policy arguments might well be made in support of appellees' suggestion that the City could have written an ordinance that would have had a less severe effect on expressive activity like theirs -- such as by providing an exception for political campaign signs -- it does not follow that such an exception is constitutionally mandated, nor is it clear that some of the suggested exceptions would even be constitutionally permissible. To create an exception for appellees' political speech and not other types of protected speech might create a risk of engaging in constitutionally forbidden content discrimination. The City may properly decide that the esthetic interest in avoiding visual clutter justifies a removal of all signs creating or increasing that clutter. Pp. 466 U. S. 815-817.682 F.2d 847, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 466 U. S. 818. |
352 | 1977_76-419 | MR. JUSTICE REHNQUIST delivered the opinion of the Court.In 1946, Congress enacted the Administrative Procedure Act, which, as we have noted elsewhere, was not only "a new, basic and comprehensive regulation of procedures in many agencies," Won Yang Sung v. McGrath, 339 U. S. 33 (195), but was also a legislative enactment which settled "long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest." Id. at 339 U. S. 40. Section 4 of the Act, 5 U.S.C. § 553 (1976 ed.), dealing with rulemaking, requires in subsection (b) that Page 435 U. S. 524 "notice of proposed rule making shall be published in the Federal Register . . . ," describes the contents of that notice, and goes on to require in subsection (c) that, after the notice, the agency"shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose."Interpreting this provision of the Act in United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742 (1972), and United States v. Florida East Coast R. Co., 410 U. S. 224 (1973), we held that, generally speaking, this section of the Act established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures. [Footnote 1] Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. This is not to say necessarily that there are no circumstances which would ever justify a court in overturning agency action because of a failure to employ procedures beyond those required by the statute. But such circumstances, if they exist, are extremely rare.Even apart from the Administrative Procedure Act, this Court has, for more than four decades, emphasized that the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments. In FCC v. Schreiber, 381 U. S. 279, 381 U. S. 290 (1965), the Court explicated Page 435 U. S. 525 this principle, describing it as"an outgrowth of the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved."The Court there relied on its earlier case of FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 309 U. S. 138 (1940), where it had stated that a provision dealing with the conduct of business by the Federal Communications Commission delegated to the Commission the power to resolve"subordinate questions of procedure . . . [such as] the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another's proceedings, and similar questions."It is in the light of this background of statutory and decisional law that we granted certiorari to review two judgments of the Court of Appeals for the District of Columbia Circuit because of our concern that they had seriously misread or misapplied this statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress. 429 U.S. 1090 (1977). We conclude that the Court of Appeals has done just that in these cases, and we therefore remand them to it for further proceedings. We also find it necessary to examine the Court of Appeals' decision with respect to agency action taken after full adjudicatory hearings. We again conclude that the court improperly intruded into the agency's decisionmaking process, making it necessary for us to reverse and remand with respect to this part of the cases also.IAUnder the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U.S.C. § 2011 et seq., the Atomic Energy Commission [Footnote 2] Page 435 U. S. 526 was given broad regulatory authority over the development of nuclear energy. Under the terms of the Act, a utility seeking to construct and operate a nuclear power plant must obtain a separate permit or license at both the construction and the operation stage of the project. See 42 U.S.C. §§ 2133, 2232, 2235, 2239. In order to obtain the construction permit, the utility must file a preliminary safety analysis report, an environmental report, and certain information regarding the antitrust implications of the proposed project. See 10 CFR §§ 2.101, 50.30(f), 50.33a, 50.34(a) (1977). This application then undergoes exhaustive review by the Commission's staff and by the Advisory Committee on Reactor Safeguards (ACRS), a group of distinguished experts in the field of atomic energy. Both groups submit to the Commission their own evaluations, which then become part of the record of the utility's application. [Footnote 3] See 42 U.S.C. §§ 2039, 2232(b). The Commission staff also undertakes the review required by the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and prepares a draft environmental impact statement, which, after being circulated for comment, 10 CFR §§ 51.22-51.25 (1977), is revised and becomes a final environmental impact statement. § 51.26. Thereupon, a three-member Atomic Safety and Licensing Board conducts a public adjudicatory hearing, 42 U.S.C. § 2241, and reaches a decision [Footnote 4] which can be Page 435 U. S. 527 appealed to the Atomic Safety and Licensing Appeal Board, and currently, in the Commission's discretion, to the Commission itself. 10 CFR §§ 2.714, 2.721, 2.786, 2.787 (1977). The final agency decision may be appealed to the courts of appeals. 42 U.S.C. § 2239; 28 U.S.C. § 2342. The same sort of process occurs when the utility applies for a license to operate the plant, 10 CFR § 50.34(b) (1977), except that a hearing need only be held in contested cases, and may be limited to the matters in controversy. See 42 U.S.C. § 2239(a); 10 CFR § 2.105 (1977); 10 CFR pt. 2, App. A, V(f) (1977). [Footnote 5]These cases arise from two separate decisions of the Court of Appeals for the District of Columbia Circuit. In the first, the court remanded a decision of the Commission to grant a license to petitioner Vermont Yankee Nuclear Power Corp. to operate a nuclear power plant. Natural Resources Defense Council v. NRC, 178 U.S.App.D.C. 336, 547 F.2d 633 (1976). In the second, the court remanded a decision of that same agency to grant a permit to petitioner Consumers Power Co. to construct two pressurized water nuclear reactors to generate electricity and steam. Aeschliman v. NRC, 178 U.S.App.D.C. 325, 547 F.2d 622 (1976).BIn December, 1967, after the mandatory adjudicatory hearing and necessary review, the Commission granted petitioner Vermont Yankee a permit to build a nuclear power plant in Vernon, Vt. See 4 A.E.C. 36 (1967). Thereafter, Vermont Yankee applied for an operating license. Respondent Natural Resources Defense Council (NRDC) objected to the granting Page 435 U. S. 528 of a license, however, and therefore a hearing on the application commenced on August 10, 1971. Excluded from consideration at the hearings, over NRDC's objection, was the issue of the environmental effects of operations to reprocess fuel or dispose of wastes resulting from the reprocessing operations. [Footnote 6] This ruling was affirmed by the Appeal Board in June, 1972.In November, 1972, however, the Commission, making specific reference to the Appeal Board's decision with respect to the Vermont Yankee license, instituted rulemaking proceedings"that would specifically deal with the question of consideration of environmental effects associated with the uranium fuel cycle in the individual cost-benefit analyses for light water cooled nuclear power reactors."App. 352. The notice of proposed rulemaking offered two alternatives, both predicated on a report prepared by the Commission's staff entitled Environmental Survey of the Nuclear Fuel Cycle. The first would have required no quantitative evaluation of the environmental hazards of fuel reprocessing or disposal. because the Environmental Survey had found them to be slight. The second would have specified numerical values for the environmental impact of this part of the fuel cycle, which values would then be incorporated into a table, along with the other relevant factors, to determine the overall cost-benefit balance for each operating license. See id. at 356-357.Much of the controversy in this case revolves around the Page 435 U. S. 529 procedures used in the rulemaking hearing which commenced in February, 1973. In a supplemental notice of hearing, the Commission indicated that, while discovery or cross-examination would not be utilized, the Environmental Survey would be available to the public before the hearing, along with the extensive background documents cited therein. All participants would be given a reasonable opportunity to present their position, and could be represented by counsel if they so desired. Written and, time permitting, oral statements would be received and incorporated into the record. All persons giving oral statements would be subject to questioning by the Commission. At the conclusion of the hearing, a transcript would be made available to the public, and the record would remain open for 30 days to allow the filing of supplemental written statements. See generally id. at 361-363. More than 40 individuals and organizations representing a wide variety of interests submitted written comments. On January 17, 1973, the Licensing Board held a planning session to schedule the appearance of witnesses and to discuss methods for compiling a record. The hearing was held on February 1 and 2, with participation by a number of groups, including the Commission's staff, the United States Environmental Protection Agency, a manufacturer of reactor equipment, a trade association from the nuclear industry, a group of electric utility companies, and a group called Consolidated National Intervenors, which represented 79 groups and individuals, including respondent NRDC.After the hearing, the Commission's staff filed a supplemental document for the purpose of clarifying and revising the Environmental Survey. Then the Licensing Board forwarded its report to the Commission without rendering any decision. The Licensing Board identified as the principal procedural question the propriety of declining to use full formal adjudicatory procedures. The major substantive issue was the technical adequacy of the Environmental Survey. Page 435 U. S. 530In April, 1974, the Commission issued a rule which adopted the second of the two proposed alternatives described above. The Commission also approved the procedures used at the hearing, [Footnote 7] and indicated that the record, including the Environmental Survey, provided an "adequate data base for the regulation adopted." Id. at 392. Finally, the Commission ruled that, to the extent the rule differed from the Appeal Board decisions in Vermont Yankee, "those decisions have no further precedential significance," id. at 386, but that, since"the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant, . . . it is unnecessary to apply the amendment to applicant's environmental reports submitted prior to its effective date or to Final Environmental Statements for which Draft Environmental Statements have been circulated for comment prior to the effective date,"id. at 395Respondents appealed from both the Commission's adoption of the rule and its decision to grant Vermont Yankee's license to the Court of Appeals for the District of Columbia Circuit.CIn January, 1969, petitioner Consumers Power Co. applied for a permit to construct two nuclear reactors in Midland, Page 435 U. S. 531 Mich. Consumers Power's application was examined by the Commission's staff and the ACRS. The ACRS issued reports which discussed specific problems and recommended solutions. It also made reference to "other problems" of a more generic nature, and suggested that efforts should be made to resolve them with respect to these, as well as all other, projects. [Footnote 8] Two groups, one called Saginaw and another called Mapleton, intervened and opposed the application. [Footnote 9] Saginaw filed with the Board a number of environmental contentions, directed over 300 interrogatories to the ACRS, attempted to depose the chairman of the ACRS, and requested discovery of various ACRS documents. The Licensing Board denied the various discovery requests directed to the ACRS. Hearings were then held on numerous radiological health and safety issues. [Footnote 10] Thereafter, the Commission's staff issued a draft Page 435 U. S. 532 environmental impact statement. Saginaw submitted 119 environmental contentions which were both comments on the proposed draft statement and a statement of Saginaw's position in the upcoming hearings. The staff revised the statement and issued a final environmental statement in March, 1972. Further hearings were then conducted during May and June, 1972. Saginaw, however, choosing not to appear at or participate in these latter hearings, indicated that it had "no conventional findings of fact to set forth" and had not "chosen to search the record and respond to this proceeding by submitting citations of matters which we believe were proved or disproved." See App. 190 n. 9. But the Licensing Board, recognizing its obligations to "independently consider the final balance among conflicting environmental factors in the record," nevertheless treated as contested those issues "as to which intervenors introduced affirmative evidence or engaged in substantial cross-examination." Id. at 205, 191.At issue now are 17 of those 119 contentions which are claimed to raise questions of "energy conservation." The Licensing Board indicated that, as far as appeared from the record, the demand for the plant was made up of normal industrial and residential use. Id. at 207. It went on to state that it was "beyond our province to inquire into whether the customary uses being made of electricity in our society are proper' or `improper.'" Ibid. With respect to claims that Consumers Power stimulated demand by its advertising the Licensing Board indicated that"[n]o evidence was offered on this point, and, absent some evidence that Applicant is creating abnormal demand, the Board did not consider the Page 435 U. S. 533 question."Id. at 207-208. The Licensing Board also failed to consider the environmental effects of fuel reprocessing or disposal of radioactive wastes. The Appeal Board ultimately affirmed the Licensing Board's grant of a construction permit, and the Commission declined to further review the matter.At just about the same time, the Council on Environmental Quality revised its regulations governing the preparation of environmental impact statements. 38 Fed.Reg. 20550 (1973). The regulations mentioned for the first time the necessity of considering in impact statements energy conservation as one of the alternatives to a proposed project. The new guidelines were to apply only to final impact statements filed after January 28, 1974. Id. at 20557. Thereafter, on November 6, 1973, more than a year after the record had been closed in the Consumers Power case and while that case was pending before the Court of Appeals, the Commission ruled in another case that, while its statutory power to compel conservation was not clear, it did not follow that all evidence of energy conservation issues should therefore be barred at the threshold. In re Niagara Mohawk Power Corp., 6 A.E.C. 995 (1973). Saginaw then moved the Commission to clarify its ruling and reopen the Consumers Power proceedings.In a lengthy opinion, the Commission declined to reopen the proceedings. The Commission first ruled it was required to consider only energy conservation alternatives which were "reasonably available,'" would, in their aggregate effect, curtail demand for electricity to a level at which the proposed facility would not be needed, and were susceptible of a reasonable degree of proof. App. 332. It then determined, after a thorough examination of the record, that not all of Saginaw's contentions met these threshold tests. Id. at 334-340. It further determined that the Board had been willing at all times to take evidence on the other contentions. Saginaw had simply failed to present any such evidence. The Page 435 U. S. 534 Commission further criticized Saginaw for its total disregard of even those minimal procedural formalities necessary to give the Board some idea of exactly what was at issue. The Commission emphasized that,"[p]articularly in these circumstances, Saginaw's complaint that it was not granted a hearing on alleged energy conservation issues comes with ill grace. [Footnote 11]"Id. at 342. And in response to Saginaw's contention that, regardless of whether it properly raised the issues, the Licensing Board must consider all environmental issues, the Commission basically agreed, as did the Board itself, but further reasoned that the Board must have some workable procedural rules, and these rules,"in this setting, must take into account that energy conservation is a novel and evolving concept. NEPA "does not require a crystal ball' inquiry." Natural Resources Defense Council v. Morton, [148 U.S.App.D.C. 5, 15, 458 F.2d 827, 837 (1972)]. This consideration has led us to hold that we will not apply Niagara retroactively. As we gain experience on a case-by-case basis and, hopefully, feasible energy conservation techniques emerge, the applicant, staff, and licensing boards will have obligations to develop an adequate record on these issues in appropriate cases, whether or not they are raised by intervenors." "However, at this emergent stage of energy conservation principles, intervenors also have their responsibilities. They must state clear and reasonably specific energy conservation contentions in a timely fashion. Beyond that, they have a burden of coming forward with some Page 435 U. S. 535 affirmative showing if they wish to have these novel contentions explored further. [Footnote 12]"Id. at 344 (footnotes omitted). Respondents then challenged the granting of the construction permit in the Court of Appeals for the District of Columbia Circuit.DWith respect to the challenge of Vermont Yankee's license, the court first ruled that, in the absence of effective rulemaking proceedings, [Footnote 13] the Commission must deal with the environmental impact of fuel reprocessing and disposal in individual licensing proceedings. 178 U.S.App.D.C. at 344, 547 F.2d at 641. The court then examined the rulemaking proceedings and, despite the fact that it appeared that the agency employed all the procedures required by 5 U.S.C. § 553 (1976 ed.) and more, the court determined the proceedings to be inadequate, and overturned the rule. Accordingly, the Commission's determination with respect to Vermont Yankee's license was also remanded for further proceedings. [Footnote 14] 178 U.S. App.D.C. at 358, 547 F.2d at 655. Page 435 U. S. 536With respect to the permit to Consumers Power, the court first held that the environmental impact statement for construction of the Midland reactors was fatally defective for Page 435 U. S. 537 failure to examine energy conservation as an alternative to a plant of this size. 178 U.S.App.D.C. at 331, 547 F.2d at 628. The court also thought the report by ACRS was inadequate, although it did not agree that discovery from individual ACRS members was the proper way to obtain further explication of the report. Instead, the court held that the Commission should have sua sponte sent the report back to the ACRS for further elucidation of the "other problems" and their resolution. Id. at 335, 547 F.2d at 632. Finally, the court ruled that the fuel cycle issues in this case were controlled by NRDC v. NRC, discussed above, and remanded for appropriate consideration of waste disposal and other unaddressed fuel cycle issues as described in that opinion. 178 U.S.App.D.C. at 335, 547 F.2d at 632. Page 435 U. S. 538IIAPetitioner Vermont Yankee first argues that the Commission may grant a license to operate a nuclear reactor without any consideration of waste disposal and fuel reprocessing. We find, however, that this issue is no longer presented by the record in this case. The Commission does not contend that it is not required to consider the environmental impact of the spent fuel processes when licensing nuclear power plants. Indeed, the Commission has publicly stated subsequent to the Court of Appeals' decision in the instant case that consideration of the environmental impact of the back end of the fuel cycle in"the environmental impact statements for individual LWR's [light-water power reactors] would represent a full and candid assessment of costs and benefits consistent with the legal requirements and spirit of NEPA."41 Fed Reg. 45849 (1976). Even prior to the Court of Appeals' decision, the Commission implicitly agreed that it would consider the back end of the fuel cycle in all licensing proceedings: it indicated that it was not necessary to reopen prior licensing proceedings, because "the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant," and thus incorporation of those effects into the cost-benefit analysis would not change the results of such licensing proceedings. App 395. Thus, at this stage of the proceedings, the only question presented for review in this regard is whether the Commission may consider the environmental impact of the fuel processes when licensing nuclear reactors. In addition to the weight which normally attaches to the agency's determination of such a question, other reasons support the Commission's conclusion.Vermont Yankee will produce annually well over 100 pounds of radioactive wastes, some of which will be highly toxic. The Commission itself, in a pamphlet published by its Page 435 U. S. 539 information office, clearly recognizes that these wastes "pose the most severe potential health hazard. . . ." U.S. Atomic Energy Commission, Radioactive Wastes 12 (1965). Many of these substances must be isolated for anywhere from 600 to hundreds of thousands of years. It is hard to argue that these wastes do not constitute "adverse environmental effects which cannot be avoided should the proposal be implemented," or that, by operating nuclear power plants, we are not making "irreversible and irretrievable commitments of resources." 42 U.S.C. §§ 4332(2)(C)(ii), (v). As the Court of Appeals recognized, the environmental impact of the radioactive wastes produced by a nuclear power plant is analytically indistinguishable from the environmental effects of "the stack gases produced by a coal-burning power plant." 178 U.S.App.D.C. at 341, 547 F.2d at 638. For these reasons, we hold that the Commission acted well within its statutory authority when it considered the back end of the fuel cycle in individual licensing proceedings.BWe next turn to the invalidation of the fuel cycle rule. But before determining whether the Court of Appeals reached a permissible result, we must determine exactly what result it did reach, and, in this case, that is no mean feat. Vermont Yankee argues that the court invalidated the rule because of the inadequacy of the procedures employed in the proceedings. Brief for Petitioner in No. 76-419, pp. 30-38. Respondents, on the other hand, labeling petitioner's view of the decision a "straw man," argue to this Court that the court merely held that the record was inadequate to enable the reviewing court to determine whether the agency had fulfilled its statutory obligation. Brief for Respondents in No. 76-419, pp. 28-30, 40. But we unfortunately have not found the parties' characterization of the opinion to be entirely reliable; it appears here, as in Orloff v. Willoughby, 345 U. S. 83, 345 U. S. 87 (1953), that, Page 435 U. S. 540 "in this Court, the parties changed positions as nimbly as if dancing a quadrille." [Footnote 15]After a thorough examination of the opinion itself, we conclude Page 435 U. S. 541 that, while the matter is not entirely free from doubt, the majority of the Court of Appeals struck down the rule because of the perceived inadequacies of the procedures employed in the rulemaking proceedings. The court first determined the intervenors' primary argument to be"that the decision to preclude 'discovery or cross-examination' denied them a meaningful opportunity to participate in the proceedings as guaranteed by due process."178 U.S.App.D.C. at 346, 547 F.2d at 643. The court then went on to frame the issue for decision thus:"Thus, we are called upon to decide whether the procedures provided by the agency were sufficient to ventilate the issues."Ibid., 547 F.2d at 643. The court conceded that, absent extraordinary circumstances, it is improper for a reviewing court to prescribe the procedural format an agency must follow, but it likewise clearly thought it entirely appropriate to "scrutinize the record as a whole to insure that genuine opportunities to participate in a meaningful way were provided. . . ." Id. at 347, 547 F.2d at 644. The court also refrained from actually ordering the agency to follow any specific procedures, id. at 356-357, 547 F.2d at 653-654, but there is little doubt in our minds that Page 435 U. S. 542 the ineluctable mandate of the court's decision is that the procedures afforded during the hearings were inadequate. This conclusion is particularly buttressed by the fact that after the court examined the record, particularly the testimony of Dr. Pittman, and declared it insufficient, the court proceeded to discuss at some length the necessity for further procedural devices or a more "sensitive" application of those devices employed during the proceedings. Ibid. The exploration of the record and the statement regarding its insufficiency might initially lead one to conclude that the court was only examining the sufficiency of the evidence, but the remaining portions of the opinion dispel any doubt that this was certainly not the sole, or even the principal, basis of the decision. Accordingly, we feel compelled to address the opinion on its own terms, and we conclude that it was wrong.In prior opinions, we have intimated that, even in a rulemaking proceeding, when an agency is making a "quasi-judicial'" determination by which a very small number of persons are "`exceptionally affected, in each case upon individual grounds,'" in some circumstances, additional procedures may be required in order to afford the aggrieved individuals due process. [Footnote 16] United States v. Florida East Coast R. Co., 410 U.S. at 410 U. S. 242, 410 U. S. 245, quoting from Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441, 239 U. S. 446 (1915). It might also be true, although we do not think the issue is presented in this case, and accordingly do not decide it, that a totally unjustified departure from well settled agency procedures of long standing might require judicial correction. [Footnote 17] Page 435 U. S. 543But this much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances, the"administrative agencies 'should be free to fashion their own rules of procedure, and to pursue method of inquiry capable of permitting them to discharge their multitudinous duties.'"FCC v. Schreiber, 381 U.S. at 381 U. S. 290, quoting from FCC v. Pottsville Page 435 U. S. 544 Broadcasting Co., 309 U.S. at 309 U. S. 143. Indeed, our cases could hardly be more explicit in this regard. The Court has, as we noted in FCC v. Schreiber, supra at 381 U. S. 290, and n. 17, upheld this principle in a variety of applications, [Footnote 18] including that case where the District Court, instead of inquiring into the validity of the Federal Communications Commission's exercise of its rulemaking authority, devised procedures to be followed by the agency on the basis of its conception of how the public and private interest involved could best be served. Examining § 4(j) of the Communications Act of 1934, the Court unanimously held that the Court of Appeals erred in upholding that action. And the basic reason for this decision was the Court of Appeals' serious departure from the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure.We have continually repeated this theme through the years, most recently in FPC v. Transcontinental Gas Pipe Line Corp., 423 U. S. 326 (1976), decided just two Terms ago. In that case, in determining the proper scope of judicial review of agency action under the Natural Gas Act, we held that, while a court may have occasion to remand an agency decision because of the inadequacy of the record, the agency should normally be allowed to"exercise its administrative discretion in deciding how, in light of internal organization considerations, it may best proceed to develop the needed evidence, and how its prior decision should be modified in light of such evidence as develops."Id. at 423 U. S. 333. We went on to emphasize:"At least in the absence of substantial justification for doing otherwise, a reviewing court may not, after determining that additional evidence is requisite for adequate Page 435 U. S. 545 review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency. Such a procedure clearly runs the risk of 'propel[ling] the court into the domain which Congress has set aside exclusively for the administrative agency.' SEC v. Chenery Corp., 332 U. S. 194, 332 U. S. 196 (1947)."Ibid.Respondent NRDC argues that § 4 of the Administrative Procedure Act, 5 U.S.C. § 553 (1976 ed.), merely establishes lower procedural bounds, and that a court may routinely require more than the minimum when an agency's proposed rule addresses complex or technical factual issues or "Issues of Great Public Import." Brief for Respondents in No. 76-419, p. 49. We have, however, previously shown that our decisions reject this view. Supra at 435 U. S. 542 to this page. We also think the legislative history, even the part which it cites, does not bear out its contention. The Senate Report explains what eventually became § 4 thus:"This subsection states . . . the minimum requirements of public rulemaking procedure short of statutory hearing. Under it, agencies might in addition confer with industry advisory committees, consult organizations, hold informal 'hearings,' and the like. Considerations of practicality, necessity, and public interest . . . will naturally govern the agency's determination of the extent to which public proceedings should go. Matters of great import, or those where the public submission of facts will be either useful to the agency or a protection to the public, should naturally be accorded more elaborate public procedures."S.Rep. No. 752, 79th Cong., 1st Sess., 14-15 (1945). The House Report is in complete accord:"'[U]niformity has been found possible and desirable for all classes of both equity and law actions in the courts. . . . Page 435 U. S. 546 It would seem to require no argument to demonstrate that the administrative agencies, exercising but a fraction of the judicial power, may likewise operate under uniform rules of practice and procedure, and that they may be required to remain within the terms of the law as to the exercise of both quasi-legislative and quasi-judicial power.'""* * * *" "The bill is an outline of minimum essential rights and procedures. . . . It affords private parties a means of knowing what their rights are and how they may protect them . . . .""* * * *" ". . . [The bill contains] the essentials of the different forms of administrative proceedings. . . ."H.R.Rep. No.1980, 79th Cong., 2d Sess., 9, 117 (1946). And the Attorney General's Manual on the Administrative Procedure Act 31, 35 (1947), a contemporaneous interpretation previously given some deference by this Court because of the role played by the Department of Justice in drafting the legislation, [Footnote 19] further confirms that view. In short, all of this leaves little doubt that Congress intended that the discretion of the agencies, and not that of the courts, be exercised in determining when extra procedural devices should be employed.There are compelling reasons for construing § 4 in this manner. In the first place, if courts continually review agency proceedings to determine whether the agency employed procedures which were, in the court's opinion, perfectly tailored to reach what the court perceives to be the "best" or "correct" result, judicial review would be totally unpredictable. And the agencies, operating under this vague injunction to employ Page 435 U. S. 547 the "best" procedures and facing the threat of reversal if they did not, would undoubtedly adopt full adjudicatory procedures in every instance. Not only would this totally disrupt the statutory scheme, through which Congress enacted "a formula upon which opposing social and political forces have come to rest," Wong Yang Sung v. McGrath, 339 U.S. at 339 U. S. 40, but all the inherent advantages of informal rulemaking would be totally lost. [Footnote 20]Secondly, it is obvious that the court in these cases reviewed the agency's choice of procedures on the basis of the record actually produced at the hearing, 178 U.S.App.D.C. at 347, 547 F.2d at 644, and not on the basis of the information available to the agency when it made the decision to structure the proceedings in a certain way. This sort of Monday morning quarterbacking not only encourages, but almost compels, the agency to conduct all rulemaking proceedings with the full panoply of procedural devices normally associated only with adjudicatory hearings.Finally, and perhaps most importantly, this sort of review fundamentally misconceives the nature of the standard for judicial review of an agency rule. The court below uncritically assumed that additional procedures will automatically result in a more adequate record because it will give interested parties more of an opportunity to participate in and contribute to the proceedings. But informal rulemaking need not be based solely on the transcript of a hearing held before an agency. Indeed, the agency need not even hold a formal hearing. See 5 U.S.C. § 553(c) (1976 ed.). Thus, the adequacy of the "record" in this type of proceeding is not correlated directly to the type of procedural devices employed, but rather turns on whether the agency has followed the statutory mandate of the Administrative Procedure Act or other relevant statutes. If the agency is compelled to support Page 435 U. S. 548 the rule which it ultimately adopts with the type of record produced only after a full adjudicatory hearing, it simply will have no choice but to conduct a full adjudicatory hearing prior to promulgating every rule. In sum, this sort of unwarranted judicial examination of perceived procedural shortcomings of a rulemaking proceeding can do nothing but seriously interfere with that process prescribed by Congress.Respondent NRDC also argues that the fact that the Commission's inquiry was undertaken in the context of NEPA somehow permits a court to require procedures beyond those specified in § 4 of the APA when investigating factual issues through rulemaking. The Court of Appeals was apparently also of this view, indicating that agencies may be required to "develop new procedures to accomplish the innovative task of implementing NEPA through rulemaking." 178 U.S.App.D.C. at 356, 547 F.2d at 653. But we search in vain for something in NEPA which would mandate such a result. We have before observed that "NEPA does not repeal by implication any other statute." Aberdeen Rockfish R. Co. v. SCRAP, 422 U. S. 289, 422 U. S. 319 (1975). See also United States v. SCRAP, 412 U. S. 669, 412 U. S. 694 (1973). In fact, just two Terms ago, we emphasized that the only procedural requirements imposed by NEPA are those stated in the plain language of the Act. Kleppe v. Sierra Club, 427 U. S. 390, 427 U. S. 405-406 (1976). Thus, it is clear NEPA cannot serve as the basis for a substantial revision of the carefully constructed procedural specifications of the APA.In short, nothing in the APA, NEPA, the circumstances of this case, the nature of the issues being considered, past agency practice, or the statutory mandate under which the Commission operates permitted the court to review and overturn the rulemaking proceeding on the basis of the procedural devices employed (or not employed) by the Commission so long as the Commission employed at least the statutory minima, a matter about which there is no doubt in this case. Page 435 U. S. 549There remains; of course, the question of whether the challenged rule finds sufficient justification in the administrative proceedings that it should be upheld by the reviewing court. Judge Tamm, concurring in the result reached by the majority of the Court of Appeals, thought that it did not. There are also intimations in the majority opinion which suggest that the judges who joined it likewise may have thought the administrative proceedings an insufficient basis upon which to predicate the rule in question. We accordingly remand so that the Court of Appeals may review the rule as the Administrative Procedure Act provides. We have made it abundantly clear before that, when there is a contemporaneous explanation of the agency decision, the validity of that action must"stand or fall on the propriety of that finding, judged, of course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the Comptroller's decision must be vacated and the matter remanded to him for further consideration."Camp v. Pitts, 411 U. S. 138, 411 U. S. 143 (1973). See also SEC v. Chenery Corp., 318 U. S. 80 (1943). The court should engage in this kind of review and not stray beyond the judicial province to explore the procedural format or to impose upon the agency its own notion of which procedures are "best" or most likely to further some vague, undefined public good. [Footnote 21]IIIAWe now turn to the Court of Appeals' holding "that rejection of energy conservation on the basis of the threshold test' Page 435 U. S. 550 was capricious and arbitrary," 178 U.S.App.D.C. at 332, 547 F.2d at 629, and again conclude the court was wrong.The Court of Appeals ruled that the Commission's "threshold test" for the presentation of energy conservation contentions was inconsistent with NEPA's basic mandate to the Commission. Id. at 330, 547 F.2d at 627. The Commission, the court reasoned, is something more than an umpire who sits back and resolves adversary contentions at the hearing stage. Ibid., 547 F.2d at 627. And when an intervenor's comments "bring sufficient attention to the issue to stimulate the Commission's consideration of it,'" the Commission must"undertake its own preliminary investigation of the proffered alternative sufficient to reach a rational judgment whether it is worthy of detailed consideration in the EIS. Moreover, the Commission must explain the basis for each conclusion that further consideration of a suggested alternative is unwarranted."Id. at 331, 547 F.2d at 628, quoting from Indiana & Michigan Electric Co. v. FPC, 163 U.S.App.D.C. 334, 337, 502 F.2d 336, 339 (1974), cert. denied, 420 U.S. 946 (1975)While the court's rationale is not entirely unappealing as an abstract proposition, as applied to this case, we think it basically misconceives not only the scope of the agency's statutory responsibility, but also the nature of the administrative process, the thrust of the agency's decision, and the type of issues the intervenors were trying to raise.There is little doubt that, under the Atomic Energy Act of 1954, state public utility commissions or similar bodies are empowered to make the initial decision regarding the need for power. 42 U.S.C. § 2021(k). The Commission's prime area of concern in the licensing context, on the other hand, is national security, public health, and safety. §§ 2132, 2133, 2201. And it is clear that the need, as that term is conventionally used, for the power was thoroughly explored in the hearings. Even the Federal Power Commission, which regulates Page 435 U. S. 551 sales in interstate commerce, 16 U.S.C. § 824 et seq. (1976 ed.), agreed with Consumers Power's analysis of projected need. App. 207.NEPA, of course, has altered slightly the statutory balance, requiring "a detailed statement by the responsible official on . . . alternatives to the proposed action." 42 U.S.C. § 4332(C). But, as should be obvious even upon a moment's reflection, the term "alternatives" is not self-defining. To make an impact statement something more than an exercise in frivolous boilerplate, the concept of alternatives must be bounded by some notion of feasibility. As the Court of Appeals for the District of Columbia Circuit has itself recognized:"There is reason for concluding that NEPA was not meant to require detailed discussion of the environmental effects of 'alternatives' put forward in comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies -- making them available, if at all, only after protracted debate and litigation not meaningfully compatible with the timeframe of the needs to which the underlying proposal is addressed."Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 15-16, 458 F.2d 827, 837-838 (1972). See also Life of the Land v. Brinegar, 485 F.2d 460 (CA9 1973), cert. denied, 416 U.S. 961 (1974). Common sense also teaches us that the "detailed statement of alternatives" cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved. Page 435 U. S. 552With these principles in mind we now turn to the notion of "energy conservation," an alternative the omission of which was thought by the Court of Appeals to have been "forcefully pointed out by Saginaw in its comments on the draft EIS." 178 U.S.App.D.C. at 328, 547 F.2d at 625. Again, as the Commission pointed out,"the phrase 'energy conservation' has a deceptively simple ring in this context. Taken literally, the phrase suggests a virtually limitless range of possible actions and developments that might, in one way or another, ultimately reduce projected demands for electricity from a particular proposed plant."App. 331. Moreover, as a practical matter, it is hard to dispute the observation that it is largely the events of recent years that have emphasized not only the need but also a large variety of alternatives for energy conservation. Prior to the drastic oil shortages incurred by the United States in 1973, there was little serious thought in most Government circles of energy conservation alternatives. Indeed, the Council on Environmental Quality did not promulgate regulations which even remotely suggested the need to consider energy conservation in impact statements until August 1, 1973. See 40 CFR § 1500.8(a)(4) (1977); 38 Fed.Reg. 20554 (1973). And even then the guidelines were not made applicable to draft and final statements filed with the Council before January 28, 1974. Id. at 20557, 21265. The Federal Power Commission likewise did not require consideration of energy conservation in applications to build hydroelectric facilities until June 19, 1973. 18 CFR pt. 2, App. A. § 8.2 (1977); 38 Fed.Reg. 15946, 15949 (1973). And these regulations were not made retroactive either. Id. at 15946. All this occurred over a year and a half after the draft environmental statement for Midland had been prepared, and over a year after the final environmental statement had been prepared and the hearings completed.We think these facts amply demonstrate that the concept of "alternatives" is an evolving one, requiring the agency to Page 435 U. S. 553 explore more or fewer alternatives as they become better known and understood. This was well understood by the Commission, which, unlike the Court of Appeal, recognized that the Licensing Board's decision had to be judged by the information then available to it. And judged in that light, we have little doubt the Board's actions were well within the proper bounds of its statutory authority. Not only did the record before the agency give every indication that the project was actually needed, but also there was nothing before the Board to indicate to the contrary.We also think the court's criticism of the Commission's "threshold test" displays a lack of understanding of the historical setting within which the agency action took place and of the nature of the test itself. In the first place, while it is true that NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action, it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions. This is especially true when the intervenors are requesting the agency to embark upon an exploration of uncharted territory, as was the question of energy conservation in the late 1960's and early 1970's."[C]omments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern. The comment cannot merely state that a particular mistake was made . . . ; it must show why the mistake was of possible significance in the results. . . ."Portland Cement Assn. v. Ruckelshaus, 158 U.S.App.D.C. 308, 327, 486 F.2d 375, 394 (1973), cert. denied sub nom. Portland Cement Cor. v. Administrator, EPA, 417 U.S. 921 (1974). Indeed, administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making Page 435 U. S. 554 cryptic and obscure reference to matters that "ought to be" considered, and then, after failing to do more to bring the matter to the agency's attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters "forcefully presented." In fact, here, the agency continually invited further clarification of Saginaw's contentions. Even without such clarification it indicated a willingness to receive evidence on the matters. But not only did Saginaw decline to further focus its contentions, it virtually declined to participate, indicating that it had "no conventional findings of fact to set forth" and that it had not "chosen to search the record and respond to this proceeding by submitting citations of matter which we believe were proved or disproved."We also think the court seriously mischaracterized the Commission's "threshold test" as placing "heavy substantive burdens . . . on intervenors. . . ." 178 U.S.App.D.C. at 330, and n. 11, 547 F.2d at 627, and n. 11. On the contrary, the Commission explicitly stated:"We do not equate this burden with the civil litigation concept of a prima facie case, an unduly heavy burden in this setting. But the showing should be sufficient to require reasonable minds to inquire further."App. 344 n. 27. We think this sort of agency procedure well within the agency's discretion.In sum, to characterize the actions of the Commission as "arbitrary or capricious" in light of the facts then available to it, as described at length above, is to deprive those words of any meaning. As we have said in the past:"Administrative consideration of evidence . . . always creates a gap between the time the record is closed and the time the administrative decision is promulgated [and, we might add, the time the decision is judicially reviewed]. . . . If, upon the coming down of the order, Page 435 U. S. 555 litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening."ICC v. Jersey City, 322 U. S. 503, 322 U. S. 514 (1944). See also Northern Lines Merger Cases, 396 U. S. 491, 396 U. S. 521 (1970).We have also made it clear that the role of a court in reviewing the sufficiency of an agency's consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review."Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions."Kleppe v. Sierra Club, 427 U.S. at 427 U. S. 410 n. 21. We think the Court of Appeals has forgotten that injunction here, and, accordingly, its judgment in this respect must also be reversed. [Footnote 22] Page 435 U. S. 556BFinally, we turn to the Court of Appeals' holding that the Licensing Board should have returned the ACRS report to ACRS for further elaboration, understandable to a layman, of the reference to other problems.The Court of Appeals reasoned that, since one function of the report was "that all concerned may be apprised of the safety or possible hazard of the facilities," the report must be in terms understandable to a layman and replete with cross-references to previous reports in which the "other problems" are detailed. Not only that, but if the report does not so elaborate, and the Licensing Board fails to sua sponte return the report to ACRS for further development, the entire agency action, made after exhaustive studies, reviews, and 14 days of hearings, must be nullified.Again the Court of Appeals has unjustifiably intruded into the administrative process. It is true that Congress thought publication of the ACRS report served an important function. But the legislative history shows that the function of publication was subsidiary to its main function, that of providing technical advice from a body of experts uniquely qualified to provide assistance. See 42 U.S.C. § 2039; S.Rep. No. 296, 85th Cong., 1st Sess., 24 (1957); Joint Committee on Atomic Energy, A Study of AEC Procedures and Organization in the Licensing of Reactor Facilities, 85th Cong., 1st Sess., 32-34 (Comm.Print 1957). The basic information to be conveyed to the public is not necessarily a full technical exposition of every facet of nuclear energy, but rather the ACRS's position, and reasons therefor, with respect to the safety of a proposed nuclear reactor. Accordingly, the ACRS cannot be faulted for not dealing with every facet of nuclear energy in every report it issues.Of equal significance is the fact that the ACRS was not obfuscating its findings. The reports to which it referred were matters of public record, on file in the Commission's Page 435 U. S. 557 public documents room. Indeed, all ACRS reports are on file there. Furthermore, we are informed that, shortly after the Licensing Board's initial decision, ACRS prepared a list which identified its "generic safety concerns." In light of all this, it is simply inconceivable that a reviewing court should find it necessary or permissible to order the Board to sua sponte return the report to ACRS. Our view is confirmed by the fact that the putative reason for the remand was that the public did not understand the report, and yet not one member of the supposedly uncomprehending public even asked that the report be remanded. This surely is, as petitioner Consumers Power claims, "judicial intervention run riot." Brief for Petitioner in No. 76-528, p. 37.We also think it worth noting that we find absolutely nothing in the relevant statutes to justify what the court did here. The Commission very well might be able to remand a report for further clarification, but there is nothing to support a court's ordering the Commission to take that step or to support a court's requiring the ACRS to give a short explanation, understandable to a layman, of each generic safety concern.All this leads us to make one further observation of some relevance to this case. To say that the Court of Appeals' final reason for remanding is insubstantial, at best, is a gross understatement. Consumers Power first applied in 1969 for a construction permit -- not even an operating license, just a construction permit. The proposed plant underwent an incredibly extensive review. The reports filed and reviewed literally fill books. The proceedings took years, and the actual hearings themselves over two weeks. To then nullify that effort seven years later because one report refers to other problems, which problems admittedly have been discussed at length in other reports available to the public, borders on the Kafkaesque. Nuclear energy may some day be a cheap, safe source of power, or it may not. But Congress has made a Page 435 U. S. 558 choice to at least try nuclear energy, establishing a reasonable review process in which courts are to play only a limited role. The fundamental policy questions appropriately resolved in Congress and in the state legislatures are not subject to reexamination in the federal courts under the guise of judicial review of agency action. Time may prove wrong the decision to develop nuclear energy, but it is Congress or the States, within their appropriate agencies, which must eventually make that judgment. In the meantime, courts should perform their appointed function. NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. See 42 U.S.C. § 4332. See also Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. at 422 U. S. 319. It is to insure a fully informed and well considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute, Consolo v. FMC, 383 U. S. 607, 383 U. S. 620 (1966), not simply because the court is unhappy with the result reached. And a single alleged oversight on a peripheral issue, urged by parties who never fully cooperated or indeed raised the issue below, must not be made the basis for overturning a decision properly made after an otherwise exhaustive proceeding.Reversed | U.S. Supreme CourtVermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978)Vermont Yankee Nuclear Power Corp. v.Natural Resources Defense Council, Inc.No. 76-419Argued November 28, 1977Decided April 3, 1978*435 U.S. 519SyllabusIn No. 76-419, after extensive hearings before the Atomic Safety and Licensing Board (Licensing Board) and over respondents' objections, the Atomic Energy Commission (AEC) granted petitioner Vermont Yankee Nuclear Power Corp. a license to operate a nuclear power plant, and this ruling was affirmed by the Atomic Safety and Licensing Appeal Board (Appeal Board). Subsequently, the AEC, specifically referring to the Appeal Board's decision, instituted rulemaking proceedings to deal with the question of considering environmental effects associated with the uranium fuel cycle in the individual cost-benefit analyses for light-watercooled nuclear power reactors. In these proceedings, the Licensing Board was not to use full formal adjudicatory procedures. Eventually, as a result of these rulemaking proceedings, the AEC issued a so-called fuel cycle rule. At the same time, the AEC approved the procedures used at the hearing; indicated that the record, including the Environmental Survey, provided an adequate data base for the rule adopted; and ruled that, to the extent the rule differed from the Appeal Board's decision, such decision had no further precedential significance, but that, since the environmental effects of the uranium fuel cycle had been shown to be relatively insignificant, it was unnecessary to apply the rule to Vermont Yankee's environmental reports submitted prior to the rule's effective date or to the environmental statements circulated for comment prior to such date. Respondents appealed from both the AEC's adoption of the fuel cycle rule and its decision to grant Vermont Yankee's license. With respect to the license, the Court of Appeals first ruled that, in the absence of effective rulemaking proceedings, the AEC must deal with the environmental impact of fuel reprocessing and disposal in individual licensing proceedings, and went on to hold that, despite the fact that it appeared that the AEC employed all the procedures required by the Administrative Procedure Act (APA) in 5 U.S.C. § 553 (1976 ed.) and more, Page 435 U. S. 520 the rulemaking proceedings were inadequate, and overturned the rule, and, accordingly, the AEC's determination with respect to the license was also remanded for further proceedings. In No. 76-528, after examination of a report of the Advisory Committee on Reactor Safeguards (ACRS) and extensive hearings, and over respondent intervenors' objections, the AEC granted petitioner Consumers Power Co. a permit to construct two nuclear reactors, and this ruling was affirmed by the Appeal Board. At about this time, the Council on Environmental Quality revised its regulations governing the preparation of environmental impact statements so as to mention for the first time the necessity for considering energy conservation as one of the alternatives to a proposed project. In view of this development and a subsequent AEC ruling indicating that all evidence of energy conservation should not necessarily be barred at the threshold of AEC proceedings, one of the intervenors moved to reopen the permit proceedings so that energy conservation could be considered, but the AEC declined to reopen the proceedings. Respondents appealed from the granting of the construction permit. The Court of Appeals held that the environmental impact statement for the construction of the reactors was fatally defective for failure to examine energy conservation as an alternative to plants of this size, and that the ACRS report was inadequate, and should have been returned to the ACRS for further elucidation, understandable to a layman, and remanded the case for appropriate consideration of waste disposal and other unaddressed issues.Held:1. Generally speaking, 5 U.S.C. § 553 (1976 ed.) establishes the maximum procedural requirements that Congress was willing to have the courts impose upon federal agencies in conducting rulemaking proceedings, and while agencies are free to grant additional procedural rights in the exercise of their discretion, reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. And, even apart from the APA, the formulation of procedures should basically be left within the discretion of the agencies to which Congress has confided the responsibility for substantive judgments. Pp. 435 U. S. 523-525.2. The Court of Appeals in these cases has seriously misread or misapplied such statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress, and moreover, as to the Court of Appeals' decision with respect to agency action taken after full adjudicatory hearings, it improperly intruded into the agency's decisionmaking process. Pp. 435 U. S. 535-558.(a) In No. 76-419, the AEC acted well within its statutory authority Page 435 U. S. 521 when it considered the environmental impact of the fuel processes when licensing nuclear reactors. Pp. 435 U. S. 538-539.(b) Nothing in the APA, the National Environmental Policy Act of 1969 (NEPA), the circumstances of the case in No. 76-419, the nature of the issues being considered, past agency practice, or the statutory mandate under which the AEC operates permitted the Court of Appeals to review and overturn the rulemaking proceeding on the basis of the procedural devices employed (or not employed) by the AEC, so long as the AEC used at least the statutory minima, a matter about which there is no doubt. Pp. 435 U. S. 539-548.(c) As to whether the challenged rule in No. 76-419 finds sufficient justification in the administrative proceedings that it should be upheld by the reviewing court, the case is remanded so that the Court of Appeals may review the rule as the APA provides. The court should engage in this kind of review, and not stray beyond the judicial province to explore the procedural format or to impose upon the agency its own notion of which procedures are "best" or most likely to further some vague, undefined public good. P. 435 U. S. 549.(d) In No. 76-528, the Court of Appeals was wrong in holding that rejection of energy conservation on the basis of the "threshold test" was capricious and arbitrary as being inconsistent with the NEPA's basic mandate to the AEC, since the court's rationale basically misconceives not only the scope of the agency's Statutory responsibility, but also the nature of the administrative process, the thrust of the agency's decision, and the type of issues the intervenors were trying to raise. The court seriously mischaracterized the AEC's "threshold test" as placing "heavy substantive burdens on intervenors." On the contrary, the AEC's stated procedure as requiring a showing sufficient to require reasonable minds to inquire further is a procedure well within the agency's discretion. Pp. 435 U. S. 549-555.(e) The Court of Appeals' holding in No. 76-528 that the Licensing Board should have returned the ACRS report to the ACRS for further elaboration is erroneous as being an unjustifiable intrusion into the administrative process, and there is nothing in the relevant statutes to justify what the court did. Pp. 435 U. S. 556-558.No. 76-19, 178 U.S.App.D.C. 336, 547 F.2d 633, and No. 76-528, 178 U.S.App.D.C. 325, 547 F.2d 622, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which all other Members joined except BLACKMUN and POWELL, JJ., who took no part in the consideration or decision of the cases. Page 435 U. S. 523 |
353 | 1978_78-425 | MR. JUSTICE POWELL delivered the opinion of the Court.The question in this case is whether two workers were engaged in "maritime employment," as defined by § 2(3) of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1425, as amended, 86 Stat. 1251, 33 U.S.C. § 902(3), when they sustained injuries for which they seek compensation.IOn April 12, 1973, Diverson Ford accidentally struck the middle finger of his left hand with a hammer while working on a public dock in the Port of Beaumont, Tex. On the day of his injury, Ford was employed by the P. C. Pfeiffer Co. to fasten military vehicles onto railroad flatcars. The vehicles had been delivered to the port by ship a number of days before the accident, stored, and then loaded onto flatcars the day before. The flatcars would take the vehicles to their inland destination.Ford was working out of the warehousemen's local on the day of the accident. Agreements between employers, the warehousemen's union, and the longshoremen's union limit the tasks that warehousemen may perform in the Port of Beaumont. Warehousemen may not move cargo directly from a vessel either to a point of rest in storage or to a railroad car. Nor may they move cargo from a shoreside point of rest directly onto a vessel. These jobs are reserved for longshoremen. App. 10-11.On May 2, 1973, Will Bryant was injured while unloading a bale of cotton from a dray wagon into a pier warehouse. Bryant was working as a cotton header for the Ayers Steamship Co. in the Port of Galveston, Tex. Cotton arrives at the port from inland shippers and enters storage in cotton Page 444 U. S. 72 compress warehouses. The cotton then goes by dray wagon to pier warehouses, where a driver and two cotton headers unload and store it. Longshoremen later move the cotton from the pier warehouses onto ships.Contractual agreements between employers, the cotton headers' union, and the longshoremen's union distinguish the work that cotton headers may perform from the tasks assignable to longshoremen. Cotton headers may only load cotton off dray wagons into the pier warehouses or move cotton within a pier warehouse. Cargo moved directly from the ship to shoreside transportation, or directly from shoreside transportation to the ship, is handled solely by longshoremen. Id. at 25, 48 49, 57-58, 661.IIBefore 1972, neither Ford nor Bryant could have received compensation under the Longshoremen's and Harbor Workers' Compensation Act, because his injury occurred on land. The pre-1972 Act was simply an effort to fill the gap in workmen's compensation coverage created by this Court's decision in Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917), which held that state compensation systems could not reach longshoremen injured seaward of the water's edge. [Footnote 1] A single situs requirement in § 3(a) of the Act governed the scope of its coverage. That requirement limited coverage to worker whose "disability or death result[ed] from an injury occurring upon the navigable waters of the United States (including any dry dock). . . ." 44 Stat. 1426. In light of Jensen and the limited purpose of the Act, the situs test was understood to draw a sharp line between injuries sustained over water and those suffered on land. Thus, in Page 444 U. S. 73 Nacirema Operating Co. v. Johnson, 396 U. S. 212, 396 U. S. 218-220 (1969), this Court held that the Act did not extend to injuries occurring on a pier attached to the land. Although the Court recognized that inequities might result from rigid adherence to the Jensen line, the Court concluded that "[t]he invitation to move that line landward must be addressed to Congress, not to this Court." 396 U.S. at 396 U. S. 224. [Footnote 2]Congress responded with the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 (1972 Act). [Footnote 3] The Act now extends coverage to more workers by replacing the single-situs requirement with a two-part situs and status standard. The newly broadened situs test provides compensation for an "employee" whose disability or death"results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)."§ 3(a), 33 U.S.C. § 903(a). The status test defines an employee as"any person Page 444 U. S. 74 engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman,shipbuilder, and shipbreaker. . . ."§ 2(3), 33 U.S.C. § 902(3). To be eligible for compensation, a person must be an employee as defined by § 2(3) who sustains injury on the situs defined by § 3(a).IIIThis Court first considered the scope of § 2(3)'s status requirement in Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977). That case concerned the claims of two workers, Blundo and Caputo. Blundo was on a pier checking cargo as it was removed from a container when he suffered a fall. [Footnote 4] Caputo sustained injury while rolling a loaded dolly into a consignee's truck. [Footnote 5] We recognized that neither the 1972 Act nor its legislative history states explicitly whether workers like Blundo and Caputo, who handle cargo between sea and land transportation, are employees within the meaning of § 2(3). The Court found, however, that consideration of the legislative history in light of the remedial purposes behind the expansion of coverage reveals a clear intent to cover such workers. 432 U.S. at 432 U. S. 267-278.One of the reasons Congress expanded coverage in 1972 was that containerization permits loading and unloading tasks traditionally conducted aboard ship to be performed on the land. Such tasks are "longshoring operations." Id. at 432 U. S. 270-271. Blundo's job of checking and marking goods as they Page 444 U. S. 75 were removed from a container was an integral part of the unloading process even though the container had been removed from a ship and trucked to a different pier before being emptied. Therefore, Blundo was an employee within the meaning of § 2(3). 432 U.S. at 432 U. S. 271.Caputo, working as part of the traditional process of moving goods from ship to land transportation, was unaffected by the advent of containerization. But the Court recognized another congressional purpose relevant to the resolution of Caputo's claim. Congress wanted to ensure that a worker who could have been covered part of the time by the pre-1972 Act would be completely covered by the 1972 Act. By enlarging the covered situs and enacting the status requirement, Congress intended that a worker's eligibility for federal benefits would not depend on whether he was injured while walking down a gangway or while taking his first step onto the land. Congress therefore counted as "longshoremen" persons who spend "at least some of their time in indisputably longshoring operations." Id. at 432 U. S. 273. Caputo, who could have been assigned to loading containers and barges as well as trucks, was such a person. Ibid. Accordingly, the Court did not have to decide whether Caputo's work was "maritime employment" simply because he "engaged in the final steps of moving cargo from maritime to land transportation: putting it in the consignee's truck." Id. at 432 U. S. 272.In holding that Blundo and Caputo were covered by the Act, Northeast Marine Terminal explicitly rejected the "point of rest" theory. Under that test, maritime employment would include only the portion of the unloading process that takes place before the stevedoring gang places cargo onto the dock. For example, a worker who carried cargo directly from a ship to a warehouse or a truck would be engaged in maritime employment, but one who carried cargo from a warehouse to a truck would not. In loading operations, only workers employed to the seaside of the last point of rest would be covered. Page 444 U. S. 76We explained that application of the "point of rest" test would be inconsistent with congressional intent. First, the concept, although well known in the maritime industry, was not mentioned in the Act or its legislative history. Second, the standard excludes from coverage employees like Blundo whose work was shifted landward by the use of containers. Third, the test conflicts with the express purpose of the Act because it allows workers to walk in and out of coverage as their work moves to different sides of a point of rest. Id. at 432 U. S. 275-276. In sum,"[a] theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage [was] incapable of defeating our conclusion that Blundo and Caputo [were] 'employees.'"Id. at 432 U. S. 278-279.Most of the litigation in the present case took place before our decision in Northeast Marine Terminal. At the initial administrative level, both Ford's and Bryant's claims for coverage were denied by Administrative Law Judges applying the point of rest doctrine. The Benefits Review Board reversed both decisions. The Court of Appeals for the Fifth Circuit affirmed. Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (1976). The court rejected the point of rest theory, holding instead that the 1972 Act covers all workers directly involved in the work of loading, unloading, repairing, building, or breaking a vessel. Id. at 539-540. The court found that "Ford's work of fastening the vehicles to the flat cars was . . . the last step in transferring this cargo from sea to land transportation," id. at 543, and that Bryant's work "was an integral part of the ongoing process of moving cargo between land transportation and a ship," id. at 544. Accordingly, the Court of Appeals concluded that both men were covered by the 1972 Act.We granted certiorari, vacated, and remanded for reconsideration in light of Northeast Marine Terminal. 433 U.S. 904 Page 444 U. S. 77 (1977). On remand, the Fifth Circuit reaffirmed the reasoning of its earlier opinion. 575 F.2d 79, 80 (1978) (per curiam). We again granted certiorari, 439 U.S. 978 (1978), and we now affirm.IVPetitioners urge that Ford and Bryant are not covered by the 1972 Act, because they were not engaged in "maritime employment." [Footnote 6] Petitioners suggest that a person is engaged in maritime employment only if, on the day of his injury, he could have been assigned to perform work upon the navigable waters of the United States. By navigable waters, the petitioners do not mean the broad situs defined in § 3(a), as amended by the 1972 Act; rather, they refer to places seaward of the Jensen line. In other words, petitioners argue that the 1972 Act covers only workers who are working or who may be assigned to work over the water itself. They say that this formulation follows congressional intent to cover all workers who, before 1972, could have walked in and out of coverage during any given day. [Footnote 7] Page 444 U. S. 78Petitioners' position is plainly inconsistent with the language and structure of the 1972 Act. The Act, as noted above, contains distinct situs and status requirements. The situs test of § 3(a) allows recovery for an injury suffered on navigable waters or certain adjoining areas landward of the Jensen line. This test defines the broad geographic coverage of the Act. Section 2(3) restricts the scope of coverage by further requiring that the injured worker must have been engaged in "maritime employment." This section defines the Act's occupational requirements. The term "maritime employment" refers to the nature of a worker's activities. Thus, § 2(3) uses the phrase "longshorem[e]n or other person[s] engaged in longshoring operations" as one example of workers who engage in maritime employment no matter where they do their job. Since § 3(a) already limits the geographic coverage of the Act, § 2(3) need not provide that longshoremen are covered only if they work in certain places. The use of the term "maritime employment" in § 2(3), therefore, provides no support for the proposition that the statutory definition of an employee imports a geographic limitation narrower than the one defined in § 3(a). [Footnote 8]The difficulty with petitioners' position becomes even plainer when their interpretation is applied to a single statutory provision that contains both the status and the situs requirement. Section 2(4), 33 U.S.C. § 902(4), defines an "employer" as one "any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States" as broadly defined by § 3(a). Page 444 U. S. 79 If the term "maritime employment" referred only to work that might take employees seaward of the Jensen line, then the broader situs test in the final clause of this section would become virtually superfluous. We decline the invitation to construe "maritime employment" so as to create two differing situs requirements in a single sentence. By understanding the term "maritime employment" to embody an occupational, rather than a geographic, concept, we give the two phases in § 2(4) distinct and consistent meanings.The discussion of coverage in the legislative history [Footnote 9] also shows that Congress intended the term "maritime employment" to refer to status, rather than situs. Committees in both Houses of Congress recognized:"[T]o take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area. The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity. Thus, employees whose responsibility is only Page 444 U. S. 80 to pick up stored cargo for further transshipment would not be covered, nor would purely clerical employees whose job do not require them to participate in the loading or unloading of cargo. [Footnote 10]"This legislative history discusses workers solely in terms of what they are doing, and never in terms of where they are working. [Footnote 11]In adopting an occupational test that focuses on loading and unloading, Congress anticipated that some persons who work only on land would receive benefits under the 1972 Act. An obvious example of such a worker is Blundo. He was checking and marking cargo from a container that had been removed from a ship and moved overland to another pier before it was opened. Without any indication that he ever would be required to set foot on a ship, this Court held that he was covered by the 1972 Act because this type of work was maritime employment. Northeast Marine Terminal Co., 432 U.S. at 432 U. S. 271.Land-based workers who do not handle containerized cargo also may be engaged in loading, unloading, repairing, or building a vessel. The Senate Subcommittee on Labor heard testimony that 30%-35% of ship repair work is done on land. [Footnote 12] Page 444 U. S. 81 Furthermore, the usual longshoring crew includes some men whose duties may be carried out solely on the land. A typical loading gang consists of persons who move cargo from a warehouse to the side of a ship, frontmen who attach the load to the ship's gear for lifting aboard the vessel, and a hold gang which stores cargo inside the ship. [Footnote 13] Although the workers who carry the cargo to shipside and the frontmen who attach the cargo to the lifting devices need not board a ship to carry out their duties, they are incontestably longshoremen directly engaged in the loading process. Even the petitioners concede that some land-based workers are covered by the 1972 Act. [Footnote 14]VThe issue in this case thus becomes whether Ford and Bryant are the kind of land-based employees that Congress intended to encompass within the term "maritime employment." Both men engaged in the type of duties that longshoremen perform in transferring goods between ship and land transportation. If the cotton that Bryant was unloading had been brought directly from the compress warehouse to a Page 444 U. S. 82 ship, his task of moving cotton off a dray wagon would have been performed by a longshoreman. [Footnote 15] Similarly, longshoremen -- not warehousemen like Ford -- would fasten military vehicles onto railroad flatcars if those vehicles went directly from a ship to the railroad cars. [Footnote 16] The only basis for distinguishing Bryant or Ford from longshoremen who otherwise would perform the same work is the point-of-rest theory. That is, longshoremen in the Ports of Beaumont and Galveston would have performed the work done by Bryant and Ford had the cargo moved without interruption between land and sea transportation. Our unanimous opinion in Northeast Marine Terminal expressly decided that application of the point-of-rest test to define the scope of maritime employment would be contrary to congressional intent. Id. at 432 U. S. 275-279. Thus, there is no principled basis for distinguishing Ford and Bryant from longshoremen who have been injured while performing the same tasks.We believe that § 2(3)'s explicit use of the terms "longshoreman" and "other person engaged in longshoring operations" to describe persons engaged in maritime employment demonstrates that workers doing tasks traditionally performed by longshoremen are within the purview of the 1972 Act. We do not suggest that the scope of maritime employment depends upon the vagaries of union jurisdiction. 432 U.S. at 432 U. S. 268, n. 30. Instead, the crucial factor is the nature of the activity to which a worker may be assigned. Persons moving cargo directly from ship to land transportation are engaged in maritime employment. Id. at 432 U. S. 267, n. 28. [Footnote 17] A worker responsible Page 444 U. S. 83 for some portion of that activity is as much an integral part of the process of loading or unloading a ship as a person who participates in the entire process. We therefore hold that Ford and Bryant were engaged in maritime employment because they were engaged in intermediate steps of moving cargo between ship and land transportation. [Footnote 18]Our decision serves the intent of Congress in creating the status requirement. First, it focuses upon the nature, not the location, of employment. Second, it does not extend coverage to all workers in the situs area. There is no doubt, for example, that neither the driver of the truck carrying cotton to Galveston nor the locomotive engineer transporting military vehicles from Beaumont was engaged in maritime employment, even though he was working on the marine situs. Such a person's "responsibility is only to pick up stored cargo for further transshipment." S.Rep. No. 92-1125, p. 13 (1972); H.R.Rep. No. 92-1441, p. 11 (1972); see Northeast Marine Terminal Co. v. Caputo, 432 U.S. at 432 U. S. 267, 432 U. S. 275, n. 37.Our decision today also serves the broader congressional purpose of expanding coverage. Congress intended to apply a simple, uniform standard of coverage. Adoption of the petitioners' test would conflict with that goal, because any individual worker's coverage would depend upon the assignment policies of his employer. For example, a land-based worker would be covered if his employer allowed him to alternate assignments with coworkers who work on the water, but he would not be covered if the employer never allowed him to board a ship. Congress did not intend the Act's coverage to shift with the employer's whim. See id. at 432 U. S. 276, n. 38. In contrast, a definition Page 444 U. S. 84 of maritime employment that reaches any worker who moves cargo between ship and land transportation will enable both workers and employers to predict with reasonable assurance who on the situs is protected by the 1972 Act.Because the Court of Appeals correctly determined that Ford and Bryant were engaged in maritime employment at the time of their injuries, its judgment isAffirmed | U.S. Supreme CourtP. C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69 (1979)P. C. Pfeiffer Co., Inc. v. FordNo. 78-425Argued March 20, 1979Reargued October 1, 1979Decided November 27, 1979444 U.S. 69SyllabusSection 2(3) of the Longshoremen's and Harbor Workers' Compensation Act, as amended in 1972, defines an employee as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations. . . ." The question in this case is whether two workers were engaged in "maritime employment," as defined by § 2(3), when they sustained injuries for which they sought compensation. Respondent Ford was injured on a public dock in the Port of Beaumont, Tex., while employed by petitioner P. C. Pfeiffer Co. and while fastening onto railroad flatcars military vehicles that had been delivered to the port by ship, stored, and then loaded the day before the accident onto the flatcars. Respondent Bryant, while working as a cotton header for petitioner Ayers Steamship Co. in the Port of Galveston, Tex., was injured while unloading a bale of cotton from a dray wagon into a pier warehouse. Cotton arriving at the port from inland shippers enters storage in cotton compress-warehouses, then goes by dray wagon to pier warehouses, and later is moved by longshoremen from the warehouses onto ships. Both Ford's and Bryant's claims for coverage were denied by Administrative Law Judges applying the "point of rest" doctrine whereby maritime employment would include only the portion of the unloading process that takes place before the stevedoring gang places cargo onto the dock and the portion of the loading process that takes place to the seaside of the last point of rest on the dock. The Benefits Review Board reversed both decisions, and the Court of Appeals affirmed. On remand for reconsideration in light of this Court's decision in Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, which rejected the "point of rest" theory, the Court of Appeals reaffirmed its earlier opinion.Held: Ford and Bryant were engaged in maritime employment at the time of their injuries, because they were engaged in intermediate steps of moving cargo between ship and land transportation. Pp. 444 U. S. 77-84.(a) Petitioners' position that the Act covers only workers who are working or who may be assigned to work over the water itself is inconsistent with the language and structure of the Act, which contains distinct Page 444 U. S. 70 situs and status requirements. Section 3(a) of the Act allows recovery for an injury suffered on navigable waters or certain adjoining areas landward of the water's edge, thus defining the broad geographic coverage of the Act, whereas § 2(3) defines the Acts occupational requirements, referring to the nature of a worker's activities. The legislative history also shows that Congress intended the term "maritime employment" in § 2(3) to refer to status, rather than situs. In adopting an occupational test that focuses on loading and unloading, Congress anticipated that some persons who work only on land would receive benefits under the Act. Cf. Northeast Marine Terminal Co. v. Caputo, supra. Pp. 444 U. S. 77-81.(b) Ford and Bryant are the kind of land-based employees that Congress intended to encompass within the term "maritime employment." Both men engaged in the type of duties that longshoremen perform in transferring goods between ship and land transportation. Under § 2(3), workers doing tasks traditionally performed by longshoremen are within the purview of the Act. The crucial factor is the nature of the activity to which a worker may be assigned. Persons moving cargo directly from ship to land transportation are engaged in maritime employment, and a worker responsible for some portion of that activity is as much an integral part of the process of loading or unloading a ship as a person who participates in the entire process. Pp. 444 U. S. 81-84.575 F.2d 79, affirmed. POWELL, J., delivered the opinion for a unanimous Court. Page 444 U. S. 71 |
354 | 1990_90-149 | JUSTICE O'CONNOR delivered the opinion of the Court.Because Nolan Lucas failed to give statutorily required notice of his intention to present evidence of an alleged rape victim's past sexual conduct, a Michigan trial court refused to let him present the evidence at trial. The Michigan Court of Appeals reversed, adopting a per se rule that preclusion of evidence of a rape victim's prior sexual relationship with a criminal defendant violates the Sixth Amendment. We consider the propriety of this per se rule.ILike most States, Michigan has a "rape-shield" statute designed to protect victims of rape from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior. See Mich. Comp.Laws § 750.520j (1979). * Page 500 U. S. 147 This statute prohibits a criminal defendant from introducing at trial evidence of an alleged rape victim's past sexual conduct, subject to two exceptions. One of the exceptions is relevant here. It permits a defendant to introduce evidence of his own past sexual conduct with the victim, provided that he follows certain procedures. Specifically, a defendant who plans to present such evidence must file a written motion and an offer of proof "within 10 days" after he is arraigned. The trial court may hold "an in camera hearing to determine whether the proposed evidence is admissible" -- i.e., whether the evidence is material and not more prejudicial than probative.Lucas was charged with two counts of criminal sexual conduct. The State maintained that Lucas had used a knife to force Wanda Brown, his ex-girlfriend, into his apartment, where he beat her and forced her to engage in several nonconsensual sex acts. At no time did Lucas file a written motion and offer of proof, as required by the statute. At the start of trial, however, Lucas' counsel asked the trial court to permit the defense to present evidence of a prior sexual relationship between Brown and Lucas, "even though I know it goes against the Statute." App. 4. Page 500 U. S. 148The trial court reviewed the statute, then denied the motion, stating that "[n]one of the requirements set forth in [the statute] have been complied with." Id. at 7-8. The court explained that Lucas' request was not made within the time required by Michigan law and that, as a result, no in camera hearing had been held to determine whether the past sexual conduct evidence was admissible. A bench trial then began, in which Lucas' defense was consent. The trial court did not credit his testimony. The court found Lucas guilty on two counts of criminal sexual assault and sentenced him to a prison term of 44 to 180 months.The Michigan Court of Appeals reversed. Relying on People v. Williams, 95 Mich.App. 1, 289 N.W.2d 863 (1980), rev'd on other grounds, 416 Mich. 25, 330 N.W.2d 823 (1982), the Court of Appeals held that the State's notice-and-hearing requirement is unconstitutional in all cases where it is used to preclude evidence of past sexual conduct between a rape victim and a criminal defendant. 160 Mich. App. 692, 694-695, 408 N.W.2d 431, 432 (1987). The court quoted language from Williams stating that the requirement "serve[s] no useful purpose'" in such cases, and therefore is insufficient to justify interference with a criminal defendant's Sixth Amendment rights. 160 Mich. App. at 695, 408 N.W.2d at 432, quoting Williams, supra, 95 Mich.App. at 10, 289 N.W.2d at 867. Williams surmised that the purpose of the notice-and-hearing requirement is "`to allow the prosecution to investigate the validity of a defendant's claim so as to better prepare to combat it at trial.'" 160 Mich. App. at 694, 408 N.W.2d at 432, quoting Williams, supra, 95 Mich. App. at 10, 289 N.W.2d at 866. It concluded, however, that this rationale "`loses its logical underpinnings'" when applied to evidence of past sexual conduct between the victim and the defendant, because "`the very nature of the evidence . . . is personal between the parties,'" and therefore impossible to investigate. 160 Mich. App. at 694, 408 N.W.2d at 432, quoting Williams, supra, 95 Mich.App. at 10, 289 N.W.2d at 866-867. Page 500 U. S. 149The Court of Appeals, relying on Williams, thus adopted a per se rule that the Michigan rape-shield statute is unconstitutional in a broad class of cases. Under this rule, a trial court would be unable to preclude past sexual conduct evidence even where a defendant's failure to comply with the notice-and-hearing requirement is a deliberate ploy to delay the trial, surprise the prosecution, or harass the victim. We granted certiorari, 498 U.S. 980 (1990), to determine whether the Michigan Court of Appeals' per se rule is consistent with our Sixth Amendment jurisprudence.IIMichigan's rape-shield statute is silent as to the consequences of a defendant's failure to comply with the notice-and-hearing requirement. The trial court assumed, without explanation, that preclusion of the evidence was an authorized remedy. Assuming, arguendo, that the trial court was correct, the statute unquestionably implicates the Sixth Amendment. To the extent that it operates to prevent a criminal defendant from presenting relevant evidence, the defendant's ability to confront adverse witnesses and present a defense is diminished. This does not necessarily render the statute unconstitutional."[T]he right to present relevant testimony is not without limitation. The right 'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'"Rock v. Arkansas, 483 U. S. 44, 483 U. S. 55 (1987), quoting Chambers v. Mississippi, 410 U. S. 284, 410 U. S. 295 (1973). We have explained, for example, that "trial judges retain wide latitude" to limit reasonably a criminal defendant's right to cross-examine a witness"based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."Delaware v. Van Arsdall, 475 U. S. 673, 475 U. S. 679 (1986).Lucas does not deny that legitimate state interests support the notice-and-hearing requirement. The Michigan statute Page 500 U. S. 150 represents a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy. The statute also protects against surprise to the prosecution. Contrary to the Michigan Court of Appeals' statement that a notice requirement "serve[s] no useful purpose'" when the victim is alleged to have had a prior sexual relationship with the defendant, 160 Mich. App. at 695, 408 N.W.2d at 432, quoting Williams, supra, 95 Mich. App. at 10, 289 N.W.2d at 867, the notice requirement permits a prosecutor to interview persons who know the parties and otherwise investigate whether such a prior relationship actually existed. When a prior sexual relationship is conceded, the notice-and-hearing procedure allows a court to determine in advance of trial whether evidence of the relationship "is material to a fact at issue in the case" and whether "its inflammatory or prejudicial nature . . . outweigh[s] its probative value." Mich. Comp.Laws § 750.520j(1) (1979).We have upheld notice requirements in analogous settings. In Williams v. Florida, 399 U. S. 78 (1970), for example, this Court upheld a Florida rule that required a criminal defendant to notify the State in advance of trial of any alibi witnesses that he intended to call. The Court observed that the notice requirement"by itself in no way affected [the defendant's] crucial decision to call alibi witnesses. . . . At most, the rule only compelled [the defendant] to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information that [he] planned to divulge at trial."Id. at 399 U. S. 85. Accelerating the disclosure of this evidence did not violate the Constitution, the Court explained, because a criminal trial is not "a poker game in which players enjoy an absolute right always to conceal their cards until played." Id. at 399 U. S. 82. In a subsequent decision, the Court described notice requirements as "a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the Page 500 U. S. 151 adversary system." Wardius v. Oregon, 412 U. S. 470, 412 U. S. 474 (1973).This does not mean, of course, that all notice requirements pass constitutional muster. Restrictions on a criminal defendant's rights to confront adverse witnesses and to present evidence "may not be arbitrary or disproportionate to the purposes they are designed to serve." Rock v. Arkansas, supra, 483 U.S. at 483 U. S. 56. It is not inconceivable that Michigan's notice requirement, which demands a written motion and an offer of proof to be filed within 10 days after arraignment, is overly restrictive. The State concedes that its notice period is the shortest in the Nation. Brief for Petitioner 38. This case does not require us to decide, however, whether Michigan's brief notice period is "arbitrary or disproportionate" to the State's legitimate interests. The Court of Appeals found the statute to be unconstitutional only insofar as it precluded evidence of a rape victim's prior sexual relationship with a defendant. Because the court expressed no view as to the brevity of the notice period, neither do we.The sole question presented for our review is whether the legitimate interests served by a notice requirement can ever justify precluding evidence of a prior sexual relationship between a rape victim and a criminal defendant. The answer from the Michigan Court of Appeals was no; it adopted a per se rule prohibiting preclusion of this kind of evidence. This ruling cannot be squared with our cases.We have indicated that probative evidence may, in certain circumstances, be precluded when a criminal defendant fails to comply with a valid discovery rule. In United States v. Nobles, 422 U. S. 225 (1975), for example, the defendant wished to put on the witness stand an investigator to testify about statements made to him during an investigation, but the defendant refused to comply with the District Page 500 U. S. 152 Court's order to submit a copy of the investigator's report to the prosecution. The District Court therefore precluded the investigator from testifying, and this Court held that the District Court's "preclusion sanction was an entirely proper method of assuring compliance with its order." Id. at 422 U. S. 241. Rejecting the defendant's Sixth Amendment claim, the Court explained that "[t]he Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system." Ibid.Even more telling is Taylor v. Illinois, 484 U. S. 400 (1988). There, the defendant violated a state procedural rule by failing to identify a particular defense witness in response to a pretrial discovery request. The trial court sanctioned this violation by refusing to allow the undisclosed witness to testify. This Court rejected the defendant's argument that, under the Compulsory Process Clause of the Sixth Amendment, "preclusion is never a permissible sanction for a discovery violation." Id. at 484 U. S. 414 (emphasis in original).We did not hold in Taylor that preclusion is permissible every time a discovery rule is violated. Rather, we acknowledged that alternative sanctions would be "adequate and appropriate in most cases." Id. at 484 U. S. 413. We stated explicitly, however that there could be circumstances in which preclusion was justified because a less severe penalty "would perpetuate, rather than limit, the prejudice to the State and the harm to the adversary process." Ibid. Taylor, we concluded, was such a case. The trial court found that Taylor's discovery violation amounted to "willful misconduct," and was designed to obtain "a tactical advantage." Id. at 484 U. S. 417. Based on these findings, we determined that, "[r]egardless of whether prejudice to the prosecution could have been avoided" by a lesser penalty, "the severest sanction [wa]s appropriate." Ibid.In light of Taylor and Nobles, the Michigan Court of Appeals erred in adopting a per se rule that Michigan's notice-and-hearing requirement violates the Sixth Amendment in all cases where it is used to preclude evidence of past sexual conduct between a rape victim and a defendant. The Sixth Amendment is not so rigid. The notice-and-hearing requirement Page 500 U. S. 153 serves legitimate state interests in protecting against surprise, harassment, and undue delay. Failure to comply with this requirement may, in some cases, justify even the severe sanction of preclusion.Recognizing our prior decisions, Lucas spends little time trying to defend the Court of Appeals' broad ruling. He argues primarily that preclusion was an unconstitutional penalty in this case because the circumstances here were not nearly as egregious as those in Taylor. He insists that the prosecution was not surprised to learn that the victim had a prior relationship with Lucas -- she had admitted this in the preliminary hearing. Additionally, he contends that his failure to comply with the notice requirement was negligent, not willful.We express no opinion as to whether or not preclusion was justified in this case. The Michigan Court of Appeals, whose decision we review here, did not address whether the trial court abused its discretion on the facts before it. Rather, the Court of Appeals adopted a per se rule that preclusion is unconstitutional in all cases where the victim had a prior sexual relationship with the defendant. That judgment was error. We leave it to the Michigan courts to address in the first instance whether Michigan's rape-shield statute authorizes preclusion and whether, on the facts of this case, preclusion violated Lucas' rights under the Sixth Amendment.The judgment of the Michigan Court of Appeals is vacated and remanded for further proceedings not inconsistent with this opinion.It is so ordered | U.S. Supreme CourtMichigan v. Lucas, 500 U.S. 145 (1991)Michigan v. LucasNo. 90-149Argued March 26, 1991Decided May 20, 1991500 U.S. 145SyllabusMichigan's "rape-shield" statute generally prohibits a criminal defendant from introducing at trial evidence of an alleged rape victim's past sexual conduct. However, a statutory exception permits a defendant to introduce evidence of his own past sexual conduct with the victim, provided that he files a written motion and an offer of proof within 10 days after he is arraigned, whereupon the trial court may hold an in camera hearing to determine whether the proposed evidence is admissible. Because respondent Lucas failed to give the statutorily required notice and, therefore, no admissibility hearing was held, a state court refused to let him introduce, at his bench trial on charges of criminal sexual assault, evidence of a prior sexual relationship with the victim, his ex-girlfriend. He was convicted and sentenced to prison, but the State Court of Appeals reversed, adopting a per se rule that the statutory notice-and-hearing requirement violates the Sixth Amendment in all cases where it is used to preclude evidence of a past sexual relationship between a rape victim and a criminal defendant.1. Assuming, arguendo, that the Michigan rape-shield statute authorizes preclusion of the evidence as a remedy for a defendant's failure to comply with the notice-and-hearing requirement, the State Court of Appeals erred in adopting a per se rule that such preclusion is unconstitutional in all cases. The Sixth Amendment is not so rigid. The notice-and-hearing requirement serves legitimate state interests: protecting rape victims against surprise, harassment, and unnecessary invasions of privacy and protecting against surprise to the prosecution. This Court's decisions demonstrate that such interests may justify even the severe sanction of preclusion in an appropriate case. Taylor v. Illinois, 484 U. S. 400, 484 U. S. 413-414, 484 U. S. 417; United States v. Nobles, 422 U. S. 225, 422 U. S. 241. Pp. 500 U. S. 149-153.2. The Michigan courts must address in the first instance whether the rape-shield statute authorizes preclusion and whether, on the facts of this case, preclusion violated Lucas' Sixth Amendment rights. P. 500 U. S. 153.Vacated and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, KENNEDY, and SOUTER, JJ., joined. BLACKMUN, Page 500 U. S. 146 J., filed an opinion concurring in the judgment, post at 500 U. S. 153. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 500 U. S. 155. |
355 | 1960_9 | MR. JUSTICE HARLAN delivered the opinion of the Court.This case, like Scales v. United States, ante, p. 367 U. S. 203, was brought here to test the validity of a conviction under the membership clause of the Smith Act. 361 U.S. 813. The case comes to us from the Court of Appeals for the Second Circuit, which affirmed petitioner's conviction in the District Court for the Western District of New York after a jury trial. 262 F.2d 501.The only one of petitioner's points we need consider is his attack on the sufficiency of the evidence, since his statutory and constitutional challenges to the conviction are disposed of by our opinion in Scales, and consideration of his other contentions is rendered unnecessary by the view we take of his evidentiary challenge.In considering that challenge, we start from the premise that Smith Act offenses require rigorous standards of proof. Scales, ante, p. 367 U. S. 230. We find that the record in this case, which was tried before our opinion issued in Yates v. United States, 354 U. S. 298, bears much of the infirmity that we found in the Yates record, and requires us to conclude that the evidence of illegal Party advocacy was insufficient to support this conviction.A large part of the evidence adduced by the Government on that issue came from the witness Lautner, and the reading of copious excerpts from the "communist classics." This evidence, to be sure, plentifully shows the Party's teaching of abstract doctrine that revolution is an inevitable product of the "proletarian" effort to achieve communism in a capitalist society, but testimony as to happenings which might have lent that evidence to an inference of "advocacy of action" to accomplish that end during the period of the indictment, 1946-1954, or itself supported such an inference, is sparse indeed. Moreover, such testimony as there is of that nature was not broadly based, but was limited almost exclusively to Party doings Page 367 U. S. 292 in western New York, more especially in the cities of Rochester and Buffalo, the scene of petitioner's principal Party activities. Further, the showing of illegal Party advocacy lacked the compelling quality which in Scales, ante, p. 367 U. S. 203, was supplied by the petitioner's own utterances and systematic course of conduct as a high Party official. We proceed to a summary of this testimony.The witness Dietch described mainly episodes from his indoctrination as a member of the Rochester Young Communist League during the years 1935-1938. In that time, he knew petitioner, with whom he had gone to high school, and testified that petitioner, then a youth, was an active and convinced member of the League. Apart from those early years, Dietch's testimony as to the Party and the petitioner referred to one other possibly relevant episode when, in 1951, he obtained for the Party at petitioner's request two pieces of special printing equipment for which petitioner paid $100 and $200. However, this episode is deprived of significance when it appears from the witness' testimony that petitioner explained to him at the time that pressure brought to bear on the Party had made it difficult for it to get its printing done by conventional commercial means.The witness Geraldine Hicks had joined the Party in 1943 at the request of the FBI and continued to be involved with it until 1953. She knew petitioner in connection with his work as Chairman of the Erie County Communist Party from 1946 until 1950. Her testimony related to classes and meetings which she attended in the Buffalo area, where the "communist classics" were used for teaching purposes. Extensive passages from these works were read into evidence. She also testified as to the importance attributed by the local Party to its "industrial concentration" work and to its recruitment of workers Page 367 U. S. 293 in those industries, as well as to the importance attributed to the recruitment of Negroes.The witness Chatley, who was a bus driver during the period of his Communist Party membership from 1949 onwards, testified to his contacts with petitioner and other Party members in the Buffalo area. He testified to Party teachings as to the importance of receiving solid support from the labor unions. He was given various items of literature such as the History of the Russian Revolution and The Proletarian Revolution and the Renegade Kautsky, which latter dealt with an early Communist who had been singled out for condemnation because of his views that communism could be achieved ultimately by peaceful means. He was told by petitioner that,"if I would reread the book[s], most of my questions would be answered. He said if there were any points I did not understand, he would be happy to clear them up at a later visit."Perhaps the most significant item of Chatley's testimony dealt with an interview with petitioner at which Chatley was requested to hide out a Party member who was fleeing the FBI in connection with "what the newspapers called this Atom Spy Ring business." So far as the record reveals, the plans never progressed beyond this request. The petitioner had also told Chatley that the Federal Government was building concentration camps:". . . He said they are not building them for ornamental purposes. He said 'They are going to fill them with our people, starting with the leaders.' . . . He said that he expected, when they were ready, he would be one of the first people to go. He said the Federal Government would continue with these camps and fill them with a lot of people, but the time would come when there would be a show-down, Page 367 U. S. 294 working people will stand just so much. It might take several years, it will result in bad times, but, in the end, it will result in a turn in the country to Marxism and Leninism. He said then his part might be in it; he was willing to suffer anything to bring it to that glorious end."Certainly the most damaging testimony came from the witness Regan, who, as a government agent and Party member from 1947 in the Buffalo-Rochester area, gathered considerable information on the Party's "industrial concentration" program in that area. Regan, at the request of petitioner, attended a Party meeting in New York City on creating a Party commission in the United Auto Workers. The conference concerned the penetration of the United Auto Workers, and plans were made for getting people into various shops in automobile plants in the State who could later assume positions of leadership in the union. At a later date petitioner also discussed the penetration of an automobile plant in the area by Party members sent up from New York City. Regan also received a pamphlet, but not from the petitioner, dealing with the concentration program in the steel industry. The pamphlet stated at one point:"1. Three basic industries, steel, railroad, and mining. These are basis [sic] to the National economy, that is if any one or all three are shut down by strike, our economy is paralyzed. It is necessary for a Marxist revolutionary party to be rooted in these industries."In 1949, Regan attended a conference in Rochester at which the petitioner spoke:"He discussed concentration work, and he said the task of the Party was to build the Party within the shop in Buffalo . . . ; he specifically mentioned both steel and Westinghouse Electric."Another speaker said that"steel industry was a basic industry, Page 367 U. S. 295 by basic industry, he said the entire section of industry within the country depended on steel."Regan also attended a conference in New York City at which petitioner spoke:". . . He said a Lenin method of work within the shop was to decide upon the particular dependent within the shop, that the shop as a rule depended upon, to suspend production, it was the job of every communist to know the people, executives, and product of the company, if possible, to direct his attention on the key department; better still, to get a job in the key department."Several other passages in Regan's testimony should be adverted to for their bearing on the tone of the record before us. Speaking of the war in Korea, Regan testified that the petitioner had said at the conference of the Upstate District of the Party in 1950:". . . the war . . . was caused by an aggressive action of the United States; American troops would follow Wall Street policy. He said it is possible for this to break out in other parts of the world. He mentioned the near East.""Q. Is that all?""A. Yes."No effort was made to link up this conference with particularly trusted Party members, but it does appear that it was at this conference that plans were laid for building a Communist Party club "on the railroad."Regan also testified to a remark made at another Party conference by a lecturer that a "social democrat was an evolutionist who waited for socialism, where the Communist Party would achieve socialism through revolutions." At this same meeting, the lecturer recounted an incident Page 367 U. S. 296 that had occurred at a class she had once taught in New Rochelle, New York at an unspecified time:". . . She said a person at this class, they were discussing the Soviet Union, asked her would it be possible for him to own twenty pairs of shoes in the Soviet Union. She made the statement he was the kind of a guy they hoped to shoot someday."The witness recalled a similar intemperate remark by the petitioner during a meeting in 1947:"Lumpkin [a Party member] was talking about a visit to his home by a local newspaper reporter. He said the reporter came to his home. They let him in and answered a lot of questions. . . .""John Noto said Lumpkin should never let the reporter into the house. Should not have answered any questions. He said 'Sometime I will see the time we can stand a person like this S.O.B. against the wall and shoot him.'"The witness Greenberg testified largely about the Party program in the upstate area as to setting up printing and mimeographing equipment in case commercial channels were cut off or the Party was forced underground, and three other witnesses testified briefly to the effect that they had known petitioner when he had moved to Newark, New Jersey, and obtained a job under an assumed name as a helper or stockkeeper in the Goodyear Rubber Products Corporation factory, in connection with which he used a false Social Security number.Finally, there was testimony through the witness Lautner as to the Party's underground organization in northern New York, including petitioner's participation therein as one of the three Party members in charge.We must consider this evidence in the light most favorable to the Government to see whether it would support Page 367 U. S. 297 the conclusion that the Party engaged in the advocacy"not of . . . mere abstract doctrine of forcible overthrow, but of action to that end, by the use of language reasonably and ordinarily calculated to incite persons to . . . action"immediately or in the future. Yates v. United States, supra, at 354 U. S. 316. In that case, we said:". . . The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to 'action for the accomplishment' of forcible overthrow, to violence as 'a rule or principle of action,' and employing 'language of incitement' . . . is not constitutionally protected. . . . This is quite a different thing from the view of the District Court here, that mere doctrinal justification of forcible overthrow, if engaged in with the intent to accomplish overthrow, is punishable per se under the Smith Act. That sort of advocacy, even though uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in Dennis. As one of the concurring opinions in Dennis put it:""Throughout our decisions, there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action and advocacy that such action be taken."Id. at 354 U. S. 321-322.The great bulk of the evidence in this record seems to us to come within the purview of the first of the contrasted alternatives elaborated in the concurring opinion in Dennis v. United States, 341 U. S. 494, 341 U. S. 545, and referred to in the passage just quoted. We held in Yates, and we reiterate now, that the mere abstract teaching of Communist Page 367 U. S. 298 theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching, and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it.Surely the offhand remarks that certain individuals hostile to the Party would one day be shot cannot demonstrate more than the venomous or spiteful attitude of the Party towards its enemies, and might indicate what could be expected from the Party if it should ever succeed to power. The "industrial concentration" program, as to which the witness Regan testified in some detail, does indeed come closer to the kind of concrete and particular program on which a criminal conviction in this sort of case must be based. But, in examining that evidence, it appears to us that, in the context of this record, this too fails to establish that the Communist Party was an organization which presently advocated violent overthrow of the Government now or in the future, for that is what must be proven. The most that can be said is that the evidence as to that program might justify an inference that the leadership of the Party was preparing the way for a situation in which future acts of sabotage might be facilitated, but there is no evidence that such acts of sabotage were presently advocated; and it is present advocacy, and not an intent to advocate in the future or a conspiracy to advocate in the future once a groundwork has been laid, which is an element of the crime under the membership clause. To permit an inference of present advocacy from evidence Page 367 U. S. 299 showing, at best, only a purpose or conspiracy to advocate in the future would be to allow the jury to blur the lines of distinction between the various offenses punishable under the Smith Act.The kind of evidence which we found in Scales sufficient to support the jury's verdict of present illegal Party advocacy is lacking here in any adequately substantial degree. It need hardly be said that it is upon the particular evidence in a particular record that a particular defendant must be judged, and not upon the evidence in some other record or upon what may be supposed to be the tenets of the Communist Party. See Yates, supra, at 354 U. S. 330.Although our conclusion renders unnecessary consideration of the evidence as to petitioner's personal criminal purpose to bring about the overthrow of the Government by force and violence, a further word may be desirable. While evidence of the industrial concentration program, in which petitioner was active, does not alone justify an inference of the Party's present advocacy of violent overthrow, it may very well tend to show the quite different element of the petitioner's own purpose. Even though it is not enough to sustain a conviction that the Party has engaged in "mere doctrinal justification of forcible overthrow . . . [even] with the intent to accomplish overthrow," Yates, supra, at 354 U. S. 321, it would seem that such a showing might be of weight in meeting the requirement that the particular defendant in a membership clause prosecution had the requisite criminal intent. But it should also be said that this element of the membership crime, like its others, must be judged strictissimi juris, for otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally Page 367 U. S. 300 protected purposes because of other and unprotected purposes which he does not necessarily share.In view of our conclusion as to the insufficiency of the evidence as to illegal Party advocacy, the judgment of the Court of Appeals must beReversed | U.S. Supreme CourtNoto v. United States, 367 U.S. 290 (1961)Noto v. United StatesNo. 9Argued October 10-11, 1960Decided June 5, 1961367 U.S. 290SyllabusPetitioner was convicted of violating the so-called membership clause of the Smith Act, which makes a felony the acquisition or holding of membership in any organization which advocates the overthrow of the Government of the United States by force or violence, knowing the purpose thereof.Held: the judgment is reversed, because the evidence was insufficient to prove that the Communist Party presently advocated forcible overthrow of the Government not as an abstract doctrine, but by the use of language reasonably and ordinarily calculated to incite persons to action, immediately or in the future. Pp. 369 U.S. 291-300.(a) In order to support a conviction under the membership clause of the Smith Act, there must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it. P. 367 U. S. 298.(b) It is present advocacy, not an intent to advocate in the future or a conspiracy to advocate in the future, which is an element of the crime under the membership clause of the Smith Act. P. 367 U. S. 298.(c) A defendant must be judged upon the evidence in his own trial, and not upon the evidence in some other trial or upon what may be supposed to be the tenets of the Communist Party. P. 367 U. S. 299.262 F.2d 501 reversed. Page 369 U. S. 291 |
356 | 1982_81-1590 | JUSTICE MARSHALL delivered the opinion of the Court.Title 39 U.S.C. § 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. The District Court held that, as applied to appellee's mailings, the statute violates the First Amendment. We affirm.ISection 3001(e)(2) states that"[a]ny unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs. . . . [Footnote 1]"As interpreted by Postal Page 463 U. S. 62 Service regulations, [Footnote 2] the statutory provision does not apply to unsolicited advertisements in which the mailer has no commercial interest. In addition to the civil consequences of a violation of § 3001(e)(2), 18 U.S.C. § 1461 makes it a crime knowingly to use the mails for anything declared by § 3001(e) to be nonmailable. [Footnote 3]Appellee Youngs Drug Products Corp. (Youngs) is engaged in the manufacture, sale, and distribution of contraceptives. Youngs markets its products primarily through sales to chain warehouses and wholesale distributors, who in turn sell contraceptives to retail pharmacists, who then sell those products to individual customers. Appellee publicizes the availability and desirability of its products by various methods. This litigation resulted from Youngs' decision to undertake a campaign of unsolicited mass mailings to members of the public. In conjunction with its wholesalers and retailers, Youngs seeks to mail to the public on an unsolicited basis three types of materials:"-- multi-page, multi-item flyers promoting a large variety of products available at a drugstore, including prophylactics;""-- flyers exclusively or substantially devoted to promoting prophylactics;""-- informational pamphlets discussing the desirability and availability of prophylactics in general or Youngs' products in particular. [Footnote 4] "Page 463 U. S. 63In 1979, the Postal Service traced to a wholesaler of Youngs' products an allegation of an unsolicited mailing of contraceptive advertisements. The Service warned the wholesaler that the mailing violated 39 U.S.C. § 3001(e)(2). Subsequently, Youngs contacted the Service and furnished it with copies of Youngs' three types of proposed mailings, stating its view that the statute could not constitutionally restrict the mailings. The Service rejected Youngs' legal argument and notified the company that the proposed mailings would violate § 3001(e)(2). Youngs then brought this action for declaratory and injunctive relief in the United States District Court for the District of Columbia. It claimed that the statute, as applied to its proposed mailings, violated the First Amendment, and that Youngs and its wholesaler were refraining from distributing the advertisements because of the Service's warning.The District Court determined that § 3001(e)(2), by its plain language, prohibited all three types of proposed mailings. The court then addressed the constitutionality of the statute as applied to these mailings. Finding all three types of materials to be commercial solicitations, the court considered the constitutionality of the statute within the framework established by this Court for analyzing restrictions imposed on commercial speech. The court concluded that the statutory prohibition was more extensive than necessary to the interests asserted by the Government, and Page 463 U. S. 64 it therefore held that the statute's absolute ban on the three types of mailings violated the First Amendment. [Footnote 5]IIBeginning with Bigelow v. Virginia, 421 U. S. 809 (1975), this Court extended the protection of the First Amendment to commercial speech. [Footnote 6] Nonetheless, our decisions have recognized"the 'common-sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech."Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 436 U. S. 455-456 (1978). Thus, we have held that the Constitution accords less protection to commercial speech than Page 463 U. S. 65 to other constitutionally safeguarded forms of expression. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557, 447 U. S. 562-563 (1980); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 771-772, n. 24 (1976).For example, as a general matter,"the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."Police Department of Chicago v. Mosley, 408 U. S. 92, 408 U. S. 95 (1972). With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances. [Footnote 7] See Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U. S. 530, 447 U. S. 538-539 (1980); Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U.Chi.L.Rev. 81, 82 (1978). By contrast, regulation of commercial speech based on content is less problematic. In light of the greater potential for deception or confusion in the context of certain advertising messages, see In re R.M.J., 455 U. S. 191, 455 U. S. 200 (1982), content-based restrictions on commercial speech may be permissible. See Friedman v. Rogers, 440 U. S. 1 (1979) (upholding prohibition on use of trade names by optometrists).Because the degree of protection afforded by the First Amendment depends on whether the activity sought to be regulated constitutes commercial or noncommercial speech, we must first determine the proper classification of the mailings at issue here. Appellee contends that its proposed mailings constitute "fully protected" speech, so that § 3001(e)(2) amounts to an impermissible content-based restriction Page 463 U. S. 66 on such expression. [Footnote 8] Appellants argue, [Footnote 9] and the District Court held, [Footnote 10] that the proposed mailings are all commercial speech. The application of § 3001(e)(2) to appellee's proposed mailings must be examined carefully to ensure that speech deserving of greater constitutional protection is not inadvertently suppressed. [Footnote 11]Most of appellee's mailings fall within the core notion of commercial speech -- "speech which does no more than propose a commercial transaction.'" Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., supra, at 425 U. S. 762, quoting Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376, 413 U. S. 385 (1973). [Footnote 12] Youngs' informational pamphlets, however, cannot be characterized merely as proposals to engage in commercial transactions. Their proper classification as commercial or noncommercial speech thus presents a closer question. The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech. See New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 265-266 (1964). Similarly, the reference to a specific product does not, by itself, render the pamphlets commercial speech. [Footnote 13] See Associated Students for Univ. of Cal. at Riverside v. Attorney General, Page 463 U. S. 67 368 F. Supp. 11, 24 (CD Cal.1973). Finally, the fact that Youngs has an economic motivation for mailing the pamphlets would clearly be insufficient, by itself, to turn the materials into commercial speech. See Bigelow v. Virginia, 421 U.S. at 421 U. S. 818; Ginbzurg v. United States, 383 U. S. 463, 383 U. S. 474 (1966); Thornhill v. Alabama, 310 U. S. 88 (1940).The combination of all these characteristics, however, provides strong support for the District Court's conclusion that the informational pamphlets are properly characterized as commercial speech. [Footnote 14] The mailings constitute commercial speech notwithstanding the fact that they contain discussions Page 463 U. S. 68 of important public issues [Footnote 15] such as venereal disease and family planning. We have made clear that advertising which "links a product to a current public debate" is not thereby entitled to the constitutional protection afforded noncommercial speech. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. at 447 U. S. 563, n. 5. A company has the full panoply of protections available to its direct comments on public issues, [Footnote 16] so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions. See ibid. Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues. Cf. Metromedia, Inc. v. San Diego, 453 U. S. 490, 453 U. S. 540 (1981) (BRENNAN, J., concurring in judgment).We conclude, therefore, that all of the mailings in this case are entitled to the qualified but nonetheless substantial protection accorded to commercial speech.III"The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation."Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. at 447 U. S. 563. In Central Hudson, we adopted a four-part analysis for assessing the validity of restrictions on commercial speech. First, we determine whether the expression is constitutionally protected. For commercial speech to receive such protection, "it at least must concern lawful activity and not be misleading." Id. at 447 U. S. 566. Second, we ask whether the governmental interest is Page 463 U. S. 69 substantial. If so, we must then determine whether the regulation directly advances the government interest asserted, and whether it is not more extensive than necessary to serve that interest. Ibid. Applying this analysis, we conclude that § 3001(e)(2) is unconstitutional as applied to appellee's mailings.We turn first to the protection afforded by the First Amendment. The State may deal effectively with false, deceptive, or misleading sales techniques. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. at 425 U. S. 771-772. The State may also prohibit commercial speech related to illegal behavior. Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. at 413 U. S. 388. In this case, however, appellants have never claimed that Youngs' proposed mailings fall into any of these categories. To the contrary, advertising for contraceptives not only implicates "substantial individual and societal interests'" in the free flow of commercial information, but also relates to activity which is protected from unwarranted state interference. See Carey v. Population Services International, 431 U. S. 678, 431 U. S. 700-701 (1977), quoting Virginia Pharmacy Board, supra, at 425 U. S. 760, 425 U. S. 763-766. [Footnote 17] Youngs' proposed commercial speech is therefore clearly protected by the First Amendment. In deed, where -- as in this case -- a speaker desires to convey truthful information relevant to important social issues such as family planning and the prevention of venereal disease, we have previously found the First Amendment interest served by such speech paramount. See Carey v. Population Services International, supra; Bigelow v. Virginia, supra. [Footnote 18] Page 463 U. S. 70We must next determine whether the Government's interest in prohibiting the mailing of unsolicited contraceptive advertisements is a substantial one. The prohibition in 3001(e)(2) originated in 1873 as part of the Comstock Act, a criminal statute designed "for the suppression of Trade in and Circulation of obscene Literature and Articles of immoral Use." Act of Mar. 3, 1873, ch. 258, § 2, 17 Stat. 599. [Footnote 19] Appellants do not purport to rely on justifications for the Page 463 U. S. 71 statute offered during the 19th century. [Footnote 20] Instead, they advance interests that concededly were not asserted when the prohibition was enacted into law. [Footnote 21] This reliance is permissible, since the insufficiency of the original motivation does not diminish other interests that the restriction may now serve. See Ohralik v. Ohio State Bar Assn., 436 U.S. at 436 U. S. 460. Cf. Doe v. Bolton, 410 U. S. 179, 410 U. S. 190-191 (1973) (a State may readjust its views and emphases in light of modern knowledge).In particular, appellants assert that the statute (1) shields recipients of mail from materials that they are likely to find offensive and (2) aids parents' efforts to control the manner in which their children become informed about sensitive and important subjects such as birth control. [Footnote 22] The first of these interests carries little weight. In striking down a state prohibition of contraceptive advertisements in Carey v. Population Services International, supra, we stated that offensiveness was"classically not [a] justificatio[n] validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression."431 U.S. at 431 U. S. 701. [Footnote 23] We specifically declined to recognize a distinction Page 463 U. S. 72 between commercial and noncommercial speech that would render this interest a sufficient justification for a prohibition of commercial speech. Id. at 431 U. S. 701, n. 28.Recognizing that their reliance on this interest is "problematic," [Footnote 24] appellants attempt to avoid the clear import of Carey by emphasizing that § 3001(e)(2) is aimed at the mailing of materials to the home. We have, of course, recognized the important interest in allowing addressees to give notice to a mailer that they wish no further mailings which, in their sole discretion, they believe to be erotically arousing or sexually provocative. See Rowan v. Post Office Department, 397 U. S. 728, 397 U. S. 737 (1970) (upholding the constitutionality of 39 U.S.C. § 3008). [Footnote 25] But we have never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended. The First Amendment "does not permit the government to prohibit speech as intrusive unless the captive' audience cannot avoid objectionable speech." Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. at 447 U. S. 542. Recipients of objectionable mailings, however, may "`effectively avoid further bombardment of their sensibilities simply by averting their eyes.'" Ibid., quoting Cohen v. California, 403 U. S. 15, 403 U. S. 21 (1971). Consequently, the "short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned." Lamont v. Commissioner of Motor Vehicles, 269 F. Supp. 880, 883 (SDNY), summarily aff'd, 386 F.2d 449 (CA2 1967), cert. denied, 391 U.S. 915 (1968). Page 463 U. S. 73The second interest asserted by appellants -- aiding parents' efforts to discuss birth control with their children -- is undoubtedly substantial."[P]arents have an important 'guiding role' to play in the upbringing of their children . . . which presumptively includes counseling them on important decisions."H. L. v. Matheson, 450 U. S. 398, 450 U. S. 410 (1981), quoting Bellotti v. Baird, 443 U. S. 622, 443 U. S. 637 (1979). As a means of effectuating this interest, however, § 3001(e)(2) fails to withstand scrutiny.To begin with, § 3001(e)(2) provides only the most limited incremental support for the interest asserted. We can reasonably assume that parents already exercise substantial control over the disposition of mail once it enters their mailboxes. Under 39 U.S.C. § 3008, parents can also exercise control over information that flows into their mailboxes. And parents must already cope with the multitude of external stimuli that color their children's perception of sensitive subjects. [Footnote 26] Under these circumstances, a ban on unsolicited advertisements serves only to assist those parents who desire to keep their children from confronting such mailings, who are otherwise unable to do so, and whose children have remained relatively free from such stimuli.This marginal degree of protection is achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. We have previously made clear that a restriction of this scope is more extensive than the Constitution permits, for the government may not "reduce the adult population . . . to reading only what is fit for children." Butler v. Michigan, Page 463 U. S. 74 352 U. S. 380, 352 U. S. 383 (1957). [Footnote 27] The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox. In FCC v. Pacifica Foundation, 438 U. S. 726 (1978), this Court did recognize that the Government's interest in protecting the young justified special treatment of an afternoon broadcast heard by adults as well as children. [Footnote 28] At the same time, the majority "emphasize[d] the narrowness of our holding," id. at 438 U. S. 750, explaining that broadcasting is "uniquely pervasive," and that it is "uniquely accessible to children, even those too young to read." Id. at 438 U. S. 748-749 (emphasis added). The receipt of mail is far less intrusive and uncontrollable. Our decisions have recognized that the special interest of the Federal Government in regulation of the broadcast media [Footnote 29] does not readily translate into a justification for regulation of other means of communication. See Consolidated Edison Co. v. Public Service Comm'n of New York, supra, at 447 U. S. 542-543; FCC v. Pacifica Foundation, supra, at 438 U. S. 748 (broadcasting has received the most limited First Amendment protection).Section 3001(e)(2) is also defective because it denies to parents truthful information bearing on their ability to discuss birth control and to make informed decisions in this area. [Footnote 30] Page 463 U. S. 75 See Associated Students for Univ. of Cal. at Riverside v. Attorney General, 368 F. Supp. at 21. Cf. Carey v. Population Services International, 431 U.S. at 431 U. S. 708 (POWELL, J., concurring in part and concurring in judgment) (provision prohibiting parents from distributing contraceptives to children constitutes "direct interference with . . . parental guidance"). Because the proscribed information "may bear on one of the most important decisions" parents have a right to make, the restriction of "the free flow of truthful information" constitutes a "basic" constitutional defect regardless of the strength of the government's interest. Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 431 U. S. 95-96 (1977).IVWe thus conclude that the justifications offered by appellants are insufficient to warrant the sweeping prohibition on the mailing of unsolicited contraceptive advertisements. As applied to appellee's mailings, § 3001(e)(2) is unconstitutional. The judgment of the District Court is thereforeAffirmed | U.S. Supreme CourtBolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983)Bolger v. Youngs Drug Products Corp.,No. 81-1590Argued January 12, 1983Decided June 24, 1983463 U.S. 60SyllabusTitle 39 U.S.C. § 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. When appellee manufacturer of contraceptives proposed to mail to the public unsolicited advertisements including informational pamphlets promoting its products but also discussing venereal disease and family planning, the Postal Service notified appellee that the proposed mailings would violate § 3001(e)(2). Appellee then brought an action for declaratory and injunctive relief in Federal District Court, which held that the statute, as applied to the proposed mailings, violated the First Amendment.Held: As applied to appellee's proposed mailings, § 3001(e)(2) is unconstitutional. Pp. 463 U. S. 64-75.(a) The mailings, which are concededly advertisements, refer to specific products, and are economically motivated, constitute commercial speech notwithstanding the fact that they contain discussions of important public issues such as the prevention of venereal disease and family planning. Pp. 463 U. S. 64-68.(b) Advertising for contraceptives not only implicates "substantial individual and societal interests" in the free flow of commercial information, but also relates to activity that is protected from unwarranted governmental interference. Thus, appellee's proposed commercial speech is clearly protected by the First Amendment. P. 463 U. S. 69.(c) Neither of the interests asserted by appellants -- that § 3001(e)(2) shields recipients of mail from materials that they are likely to find offensive and aids parents' efforts to control the manner in which their children become informed about birth control -- is sufficient to justify the sweeping prohibition on the mailing of unsolicited contraceptive advertisements. The fact that protected speech may be offensive to some persons does not justify its suppression, and, in any event, recipients of objectionable mailings can avoid further offensiveness simply by averting their eyes or disposing of the mailings in a trash can. While the second asserted interest is substantial, § 3001(e)(2), as a means of effectuating this interest, fails to withstand scrutiny. The statute's marginal degree of protection afforded those parents who desire to keep their children from confronting such mailings is improperly achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. Section 3001(e)(2) is also defective because it denies parents Page 463 U. S. 61 truthful information bearing on their ability to discuss birth control and to make informed decisions in this area. Pp. 463 U. S. 70-75.526 F. Supp. 823, affirmed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined, post, p. 463 U. S. 75. STEVENS, J., filed an opinion concurring in the judgment, post, p. 463 U. S. 80. BRENNAN, J., took no part in the decision of the case. |
357 | 1987_86-495 | JUSTICE KENNEDY announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and II-C, and an opinion with respect to Part II-B, in which WHITE, J., joined.A gray-market good is a foreign-manufactured good, bearing a valid United States trademark, that is imported without the consent of the United States trademark holder. These cases present the issue whether the Secretary of the Treasury's regulation permitting the importation of certain gray-market goods, 19 CFR § 133.21 (1987), is a reasonable agency interpretation of § 526 of the Tariff Act of 1930 (1930 Tariff Act), 46 Stat. 741, as amended, 19 U.S.C. § 1526. Page 486 U. S. 286IAThe gray market arises in any of three general contexts. The prototypical gray-market victim (case l) is a domestic firm that purchases from an independent foreign firm the rights to register and use the latter's trademark as a United States trademark and to sell its foreign-manufactured products here. Especially where the foreign firm has already registered the trademark in the United States or where the product has already earned a reputation for quality, the right to use that trademark can be very valuable. If the foreign manufacturer could import the trademarked goods and distribute them here, despite having sold the trademark to a domestic firm, the domestic firm would be forced into sharp intrabrand competition involving the very trademark it purchased. Similar intrabrand competition could arise if the foreign manufacturer markets its wares outside the United States, as is often the case, and a third party who purchases them abroad could legally import them. In either event, the parallel importation, if permitted to proceed, would create a gray market that could jeopardize the trademark holder's investment.The second context (case 2) is a situation in which a domestic firm registers the United States trademark for goods that are manufactured abroad by an affiliated manufacturer. In its most common variation (case 2a), a foreign firm wishes to control distribution of its wares in this country by incorporating a subsidiary here. The subsidiary then registers under its own name (or the manufacturer assigns to the subsidiary's name) a United States trademark that is identical to its parent's foreign trademark. The parallel importation by a third party who buys the goods abroad (or conceivably even by the affiliated foreign manufacturer itself) creates a gray market. Two other variations on this theme occur when an American-based firm establishes abroad a manufacturing subsidiary corporation (case 2b) or its own unincorporated manufacturing division (case 2c) to produce its United States trademarked Page 486 U. S. 287 goods, and then imports them for domestic distribution. If the trademark holder or its foreign subsidiary sells the trademarked goods abroad, the parallel importation of the goods competes on the gray market with the holder's domestic sales.In the third context (case 3), the domestic holder of a United States trademark authorizes an independent foreign manufacturer to use it. Usually the holder sells to the foreign manufacturer an exclusive right to use the trademark in a particular foreign location, but conditions the right on the foreign manufacturer's promise not to import its trademarked goods into the United States. Once again, if the foreign manufacturer or a third party imports into the United States, the foreign-manufactured goods will compete on the gray market with the holder's domestic goods.BUntil 1922, the Federal Government did not regulate the importation of gray-market goods, not even to protect the investment of an independent purchaser of a foreign trademark, and not even in the extreme case where the independent foreign manufacturer breached its agreement to refrain from direct competition with the purchaser. That year, however, Congress was spurred to action by a Court of Appeals decision declining to enjoin the parallel importation of goods bearing a trademark that (as in case l) a domestic company had purchased from an independent foreign manufacturer at a premium. See A. Bourjois & Co. v. Katzel, 275 F. 539 (CA2 1921), rev'd, 260 U. S. 689 (1923).In an immediate response to Katzel, Congress enacted § 526 of the Tariff Act of 1922, 42 Stat. 975. That provision, later reenacted in identical form as § 526 of the 1930 Tariff Act, 19 U.S.C. § 1526, prohibits importing"into the United States any merchandise of foreign manufacture if such merchandise . . . bears a trademark owned by a citizen of, or by a corporation or association created or organized within, the United States, and registered Page 486 U. S. 288 in the Patent and Trademark Office by a person domiciled in the United States . . . unless written consent of the owner of such trademark is produced at the time of making entry."19 U.S.C. § 1526(a). [Footnote 1]The regulations implementing § 526 for the past 50 years have not applied the prohibition to all gray-market goods. The Customs Service regulation now in force provides generally that"[f]oreign-made articles bearing a trademark identical with one owned and recorded by a citizen of the United States or a corporation or association created or organized within the United States are subject to seizure and forfeiture as prohibited importations."19 CFR § 133.21(b) (1987). [Footnote 2] Page 486 U. S. 289 But the regulation furnishes a "common control" exception from the ban, permitting the entry of gray-market goods manufactured abroad by the trademark owner or its affiliate:"(c) Restrictions not applicable. The restrictions . . . do not apply to imported articles when:""(1) Both the foreign and the U.S. trademark or trade name are owned by the same person or business entity; [or]""(2) The foreign and domestic trademark or trade name owners are parent and subsidiary companies or are otherwise subject to common ownership or control. . . . Page 486 U. S. 290 The Customs Service regulation further provides an 'authorized-use' exception, which permits importation of gray-market goods where""(3) [t]he articles of foreign manufacture bear a recorded trademark or trade name applied under authorization of the U.S. owner. . . ."19 CFR § 133.21(c) (1987).Respondents, an association of United States trademark holders and two of its members, brought suit in Federal District Court in February 1984, seeking both a declaration that the Customs Service regulation, 19 CFR §§ 133.21(c)(1)-(3) (1987), is invalid and an injunction against its enforcement. Coalition to Preserve the Integrity of American Trademarks v. United States, 598 F. Supp. 844 (DC 1984). They asserted that the common control and authorized-use exceptions are inconsistent with § 526 of the 1930 Tariff Act. [Footnote 3] Petitioners K mart and 47th Street Photo intervened as defendants.The District Court upheld the Customs Service regulation, 598 F. Supp. at 853, but the Court of Appeals reversed, Coalition to Preserve the Integrity of American Trademarks v. United States, 252 U.S.App.D.C. 342, 790 F.2d 903 (1986) (hereinafter COPIAT), holding that the Customs Service regulation was an unreasonable administrative interpretation of § 526. We granted certiorari, 479 U.S. 1005 (1986), to resolve a conflict among the Courts of Appeals. Compare Vivitar Corp. v. United States, 761 F.2d 1552, 1557-1560 (CA Fed.1985), aff'g 593 F. Supp. 420 (Ct.Int'l Trade 1984), cert. denied, 474 U.S. 1055 (1986); and Olympus Corp. v. United States, 792 F.2d 315, 317-319 (CA2 1986), aff'g 627 F.Supp. Page 486 U. S. 291 911 (EDNY 1985), cert. pending, No. 86-757, with COPIAT, supra, at 346-355, 790 F.2d at 907-916. In an earlier opinion, we affirmed the Court of Appeals' conclusion that the District Court had jurisdiction, and set the cases for reargument on the merits. 485 U. S. 176 (1988).A majority of this Court now holds that the common control exception of the Customs Service regulation, 19 CFR §§ 133.21(c)(1)-(2) (1987), is consistent with § 526. See post at 309-310 (opinion of BRENNAN, J.). A different majority, however, holds that the authorized use exception, 19 CFR § 133.21(c)(3) (1987), is inconsistent with § 526. See post at 486 U. S. 328-329 (opinion of SCALIA, J.). We therefore affirm the Court of Appeals in part and reverse in part.IIAIn determining whether a challenged regulation is valid, a reviewing court must first determine if the regulation is consistent with the language of the statute."If the statute is clear and unambiguous 'that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.' . . . The traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress."Board of Governors, FRS v. Dimension Financial Corp., 474 U. S. 361, 474 U. S. 368 (1986), quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 842-843 (1984). See also Mills Music, Inc. v. Snyder, 469 U. S. 153, 469 U. S. 164 (1985). In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole. Bethesda Hospital Assn. v. Bowen, 485 U. S. 399, 485 U. S. 403-405 (1988); Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 477 U. S. 220-221 (1986). If the statute is silent or ambiguous with respect to the specific issue addressed by the regulation, the question becomes whether the agency Page 486 U. S. 292 regulation is a permissible construction of the statute. See Chevron, supra, at 467 U. S. 843; Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 470 U. S. 125 (1985). If the agency regulation is not in conflict with the plain language of the statute, a reviewing court must give deference to the agency's interpretation of the statute. United States v. Boyle, 469 U. S. 241, 469 U. S. 246, n. 4 (1985).BFollowing this analysis, I conclude that subsections (c)(1) and (c)(2) of the Customs Service regulation, 19 CFR §§ 133.21 (c)(1) and (c)(2) (1987), are permissible constructions designed to resolve statutory ambiguities. All Members of the Court are in agreement that the agency may interpret the statute to bar importation of gray-market goods in what we have denoted case 1, and to permit the imports under case 2a. See post at 486 U. S. 296, 486 U. S. 298-299 (opinion of BRENNAN, J.); post at 486 U. S. 318 (opinion of SCALIA, J.). As these writings state, "owned by" is sufficiently ambiguous, in the context of the statute, that it applies to situations involving a foreign parent, which is case 2a. This ambiguity arises from the inability to discern, from the statutory language, which of the two entities involved in case 2a can be said to "own" the United States trademark if, as in some instances, the domestic subsidiary is wholly owned by its foreign parent.A further statutory ambiguity contained in the phrase "merchandise of foreign manufacture" suffices to sustain the regulations as they apply to cases 2b and 2c. This ambiguity parallels that of "owned by," which sustained case 2a, because it is possible to interpret "merchandise of foreign manufacture" to mean (1) goods manufactured in a foreign country, (2) goods manufactured by a foreign company, or (3) goods manufactured in a foreign country by a foreign company. Given the imprecision in the statute, the agency is entitled to choose any reasonable definition, and to interpret the statute to say that goods manufactured by a foreign subsidiary Page 486 U. S. 293 or division of a domestic company are not goods "of foreign manufacture." [Footnote 4]C(1)Subsection (c)(3), 19 CFR § 133.21(c)(3) (1987), of the regulation, however, cannot stand. The ambiguous statutory phrases that we have already discussed, "owned by" and Page 486 U. S. 294 "merchandise of foreign manufacture," are irrelevant to the proscription contained in subsection (3) of the regulation. This subsection of the regulation denies a domestic trademark holder the power to prohibit the importation of goods made by an independent foreign manufacturer where the domestic trademark holder has authorized the foreign manufacturer to use the trademark. Under no reasonable construction of the statutory language can goods made in a foreign country by an independent foreign manufacturer be removed from the purview of the statute.(2)The design of the regulation is such that the subsection of the regulation dealing with case 3, § 133.21(c)(3), is severable. Cf. Board of Governors, FRS v. Dimension Financial Corp., 474 U.S. at 474 U. S. 368 (invalidating a Federal Reserve Board definition of "bank" in 12 CFR § 225.2(a)(1) (1985), but leaving intact the remaining parts of the regulation). The severance and invalidation of this subsection will not impair the function of the statute as a whole, and there is no indication that the regulation would not have been passed but for its inclusion. Accordingly, subsection (c)(3) of § 133.21 must be invalidated for its conflict with the unequivocal language of the statute.IIIWe hold that the Customs Service regulation is consistent with § 526 insofar as it exempts from the importation ban goods that are manufactured abroad by the "same person" who holds the United States trademark, 19 CFR § 133.21(c)(1) (1987), or by a person who is "subject to common . . . control" with the United States trademark holder, § 133.21(c)(2). Because the authorized use exception of the regulation, § 133.21(c)(3), is in conflict with the plain language of the statute, that provision cannot stand. The judgment of the Page 486 U. S. 295 Court of Appeals is therefore reversed insofar as it invalidated §§ 133.21(c)(1) and (c)(2), but affirmed with respect to § 133.21(c)(3).It is so ordered | U.S. Supreme CourtK Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988)K Mart Corp. v. Cartier, Inc.No. 86-495Argued October 6, 1987Reargued April 26, 1988Decided May 31, 1988486 U.S. 281SyllabusA gray-market good is a foreign-manufactured good, bearing a valid United States trademark, that is imported without the consent of the United States trademark holder. The gray market arises in three general contexts. In case 1, despite a domestic firm's having purchased from an independent foreign firm the rights to register and use the latter's trademark as a United States trademark and to sell its foreign-manufactured products here, the foreign firm imports the trademarked goods and distributes them here, or sells them abroad to a third party who imports them here. In case 2, after the United States trademark for goods manufactured abroad is registered by a domestic firm that is a subsidiary of (case 2a), the parent of (case 2b), or the same as (case 2c), the foreign manufacturer, goods bearing a trademark that is identical to the United States trademark are imported. In case 3, the domestic holder of a United States trademark authorizes an independent foreign manufacturer to use that trademark in a particular foreign location. Again, the foreign manufacturer or a third party imports and distributes the foreign made goods. Section 526 of the Tariff Act of 1930 prohibits the importation of "any merchandise of foreign manufacture" bearing a trademark "owned by" a citizen of, or by"a corporation . . . organized within, the United States, and registered in the Patent and Trademark Office by a person domiciled in the United States,"unless written consent of the trademark owner is produced at the time of entry. The Customs Service's implementing regulation permits the entry of goods manufactured abroad by the "same person" who holds the United States trademark or by a person who is "subject to common control" with the United States trademark holder, 19 CFR §§ 133.21(c)(1), (2), and permits importation where the foreign manufacturer has received the United States trademark owner's authorization to use its trademark, 19 CFR § 133.21(c)(3). Respondent Coalition to Preserve the Integrity of Page 486 U. S. 282 American Trademarks and two of its members filed suit against the Government seeking injunctive and declaratory relief, asserting that the regulation is inconsistent with § 526, and therefore invalid. The Federal District Court upheld the regulation, but the Court of Appeals reversed, ruling that the regulation was an unreasonable administrative interpretation of § 526.Held: The judgment is affirmed in part and reversed in part.252 U.S.App.D.C. 342, 790 F.2d 903, affirmed in part and reversed in part.JUSTICE KENNEDY delivered the opinion of the Court as to Parts I, II-A, and II-C, concluding that:1. In determining whether a challenged regulation is consistent with the statute it implements, courts must ascertain the statute's plain meaning by looking to the particular language at issue and the language and design of the statute as a whole. If the statute is clear and unambiguous, courts must give effect to Congress' unambiguously expressed intent, and cannot pay deference to a contrary agency interpretation. However, if the statute is silent or ambiguous with respect to the specific issue addressed by the regulation, a reviewing court must give deference to the agency's interpretation if it does not conflict with the statute's plain meaning. Pp. 486 U. S. 291-292.2. Allowing the importation of foreign made goods where the United States trademark owner has authorized the use of the mark, 19 CFR § 133.21(c)(3), is in conflict with the unequivocal language of § 526, and cannot stand. The regulation denies a domestic trademark holder statutory protection in the case 3 context. Under no reasonable construction of the statutory language can goods made in a foreign country by an independent foreign manufacturer be removed from the purview of the statute. However, the regulation subsection is severable, since its severance and invalidation will not impair the function of the statute as a whole and there is no indication that the regulation would not have been passed but for its inclusion. Pp. 486 U. S. 293-294.JUSTICE KENNEDY, joined by JUSTICE WHITE, concluded in Part II-B that the regulation's allowance of imports from companies under common control, 19 CFR §§ 133.21(c)(1), (2), is consistent with § 526, and is therefore valid because it is a permissible construction designed to resolve statutory ambiguities. The statutory phrase "owned by" is sufficiently ambiguous to permit parallel importation in the case 2a foreign-parent, domestic-subsidiary context, since the phrase does not reveal which of the affiliated entities can be said to "own" the United States trademark if the domestic subsidiary is wholly owned by its foreign parent. Similarly, the ambiguity contained in the statutory phrase "merchandise of Page 486 U. S. 283 foreign manufacture" suffices to sustain the regulation as it applies to cases 2b and 2c. It is possible to interpret the phrase to mean goods manufactured (1) in a foreign country, (2) by a foreign company, or (3) in a foreign country by a foreign company. Thus, the agency is entitled to choose any reasonable definition and to say that goods manufactured by a foreign subsidiary or division of a domestic company are not goods "of foreign manufacture." Pp. 486 U. S. 292-293.JUSTICE BRENNAN, joined by JUSTICE MARSHALL and JUSTICE STEVENS, agreeing that the common control exception is consistent with § 526, concluded that:1. Section 526's language does not clearly cover affiliates of foreign manufacturers. Pp. 486 U. S. 297-299.(a) The section's protectionist language and structure bespeak a congressional intent to extend protection only to domestic interests, and not to affiliates of foreign manufacturers. Much of the limiting language would be pointless if a foreign manufacturer could insulate itself by the simple device of incorporating a shell domestic subsidiary and transferring to it a single asset -- the United States trademark. Pp. 486 U. S. 297-298.(b) The undefined statutory phrase "owned by" is ambiguous when applied in the case 2a context, because it cannot be confidently discerned which of the entities involved owns the trademark. Whereas the trademark must be "owned by" a domestic firm to fall within § 526's ban, it is the foreign parent corporation -- not the domestic subsidiary whose every decision it controls -- that better fits the bill as the true owner of any property that the subsidiary nominally possesses. Similarly, § 526 does not unambiguously cover cases 2b and 2c, because it is unclear whether merchandise manufactured abroad by a division or a subsidiary of a domestic firm is "merchandise of foreign manufacture." If that phrase is interpreted to mean "merchandise manufactured in a foreign country," § 526's ban would apply. However, if the phrase is construed to mean "merchandise manufactured by a foreigner," § 526's coverage is not as clear. A domestic firm that establishes a manufacturing division abroad (case 2c) cannot be said to be a foreigner, and it is at the very least reasonable to view as "American" the foreign subsidiary of a domestic firm (case 2b). Pp. 486 U. S. 298-299.2. The common control exception is consistent with § 526's purpose and legislative history, which confirm that, if Congress had any intent as to the section's application to affiliates of foreign manufacturers, it was that they ought not enjoy § 526's protection. The major stimulus for the enactment of § 526 was the congressionally perceived inequity of A. Bourjois & Co. v. Katzel, 275 F. 539, which declined to protect a case 1 trademark holder. However, the profound differences between the equities presented in the case 1 and case 2 contexts -- which result Page 486 U. S. 284 from the fact that the case 1 trademark holder has a much greater investment at stake, but much less control over parallel importation and foreign sales to third parties, than its case 2 counterpart -- furnish perfectly rational reasons for Congress' distinguishing between the two situations. Pp. 486 U. S. 300-309.3. The deference owed longstanding administrative interpretations further buttresses the conclusion that the common control exception is consistent with § 526. While the precise language of the importation bar has varied over the years, the Customs Service has for 50 years adhered to the exception's basic premise that § 526 does not require exclusion of all gray-market goods in the context of affiliated entities. Such a longstanding administrative practice should not be lightly overturned, particularly where, as here, an immense domestic retail industry has developed in reliance upon it. Pp. 486 U. S. 309-312.KENNEDY, J., announced the judgment of the Court and delivered an opinion of the Court with respect to Parts I and II-A, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined, an opinion of the Court with respect to Part II-C, in which REHNQUIST, C.J., and BLACKMUN, O'CONNOR, and SCALIA, JJ., joined, and an opinion with respect to Part II-B, in which WHITE, J., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined, and in Part IV of which WHITE, J., joined, post, p. 486 U. S. 295. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C.J., and BLACKMUN and O'CONNOR, JJ., joined, post, p. 486 U. S. 318. Page 486 U. S. 285 |
358 | 1979_76-811 | MR. JUSTICE POWELL announced the judgment of the Court.This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admission Page 438 U. S. 270 of a specified number of students from certain minority groups. The Superior Court of California sustained respondent's challenge, holding that petitioner's program violated the California Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and the Equal Protection Clause of the Fourteenth Amendment. The court enjoined petitioner from considering respondent's race or the race of any other applicant in making admissions decisions. It refused, however, to order respondent's admission to the Medical School, holding that he had not carried his burden of proving that he would have been admitted but for the constitutional and statutory violations. The Supreme Court of California affirmed those portions of the trial court's judgment declaring the special admissions program unlawful and enjoining petitioner from considering the race of any applicant. * Page 438 U. S. 271 It modified that portion of the judgment denying respondent's requested injunction and directed the trial court to order his admission.For the reasons stated in the following opinion, I believe that so much of the judgment of the California court as holds petitioner's special admissions program unlawful and directs that respondent be admitted to the Medical School must be affirmed. For the reasons expressed in a separate opinion, my Brothers THE CHIEF JUSTICE, MR. JUSTICE STEWART, MR. JUSTICE REHNQUIST, and MR. JUSTICE STEVENS concur in this judgment. Page 438 U. S. 272I also conclude, for the reasons stated in the following opinion, that the portion of the court's judgment enjoining petitioner from according any consideration to race in its admissions process must be reversed. For reasons expressed in separate opinions, my Brothers MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN concur in this judgment.Affirmed in part and reversed in part.I**The Medical School of the University of California at Davis opened in 1968 with an entering class of 50 students. In 1971, the size of the entering class was increased to 100 students, a level at which it remains. No admissions program for disadvantaged or minority students existed when the school opened, and the first class contained three Asians but no blacks, no Mexican-Americans, and no American Indians. Over the next two years, the faculty devised a special admissions program to increase the representation of "disadvantaged" students in each Medical School class. [Footnote 1] The special program consisted of Page 438 U. S. 273 a separate admissions system operating in coordination with the regular admissions process.Under the regular admissions procedure, a candidate could submit his application to the Medical School beginning in July of the year preceding the academic year for which admission was sought. Record 149. Because of the large number of applications, [Footnote 2] the admissions committee screened each one to select candidates for further consideration. Candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. Id. at 63. About Page 438 U. S. 274 one out of six applicants was invited for a personal interview. Ibid. Following the interviews, each candidate was rated on a scale of 1 to 100 by his interviewers and four other members of the admissions committee. The rating embraced the interviewers' summaries, the candidate's overall grade point average, grade point average in science courses, scores on the Medical College Admissions Test (MCAT), letters of recommendation, extracurricular activities, and other biographical data. Id. at 62. The ratings were added together to arrive at each candidate's "benchmark" score. Since five committee members rated each candidate in 1973, a perfect score was 500; in 1974, six members rated each candidate, so that a perfect score was 600. The full committee then reviewed the file and scores of each applicant and made offers of admission on a "rolling" basis. [Footnote 3] The chairman was responsible for placing names on the waiting list. They were not placed in strict numerical order; instead, the chairman had discretion to include persons with "special skills." Id. at 63-64.The special admissions program operated with a separate committee, a majority of whom were members of minority groups. Id. at 163. On the 1973 application form, candidates were asked to indicate whether they wished to be considered as "economically and/or educationally disadvantaged" applicants; on the 1974 form the question was whether they wished to be considered as members of a "minority group," which the Medical School apparently viewed as "Blacks," "Chicanos," "Asians," and "American Indians." Id. at 65-66, 146, 197, 203-205, 216-218. If these questions were answered affirmatively, the application was forwarded to the special admissions committee. No formal definition of "disadvantaged" Page 438 U. S. 275 was ever produced, id. at 163-164, but the chairman of the special committee screened each application to see whether it reflected economic or educational deprivation. [Footnote 4] Having passed this initial hurdle, the applications then were rated by the special committee in a fashion similar to that used by the general admissions committee, except that special candidates did not have to meet the 2.5 grade point average cutoff applied to regular applicants. About one-fifth of the total number of special applicants were invited for interviews in 1973 and 1974. [Footnote 5] Following each interview, the special committee assigned each special applicant a benchmark score. The special committee then presented its top choices to the general admissions committee. The latter did not rate or compare the special candidates against the general applicants, id. at 388, but could reject recommended special candidates for failure to meet course requirements or other specific deficiencies. Id. at 171-172. The special committee continued to recommend special applicants until a number prescribed by faculty vote were admitted. While the overall class size was still 50, the prescribed number was 8; in 1973 and 1974, when the class size had doubled to 100, the prescribed number of special admissions also doubled, to 16. Id. at 164, 166.From the year of the increase in class size -- 1971 -- through 1974, the special program resulted in the admission of 21 black students, 30 Mexican-Americans, and 12 Asians, for a total of 63 minority students. Over the same period, the regular admissions program produced 1 black, 6 Mexican-Americans, Page 438 U. S. 276 and 37 Asians, for a total of 44 minority students. [Footnote 6] Although disadvantaged whites applied to the special program in large numbers, see n 5, supra, none received an offer of admission through that process. Indeed, in 1974, at least, the special committee explicitly considered only "disadvantaged" special applicants who were members of one of the designated minority groups. Record 171.Allan Bakke is a white male who applied to the Davis Medical School in both 1973 and 1974. In both years, Bakke's application was considered under the general admissions program, and he received an interview. His 1973 interview was with Dr. Theodore C. West, who considered Bakke "a very desirable applicant to [the] medical school." Id. at 225. Despite a strong benchmark score of 468 out of 500, Bakke was rejected. His application had come late in the year, and no applicants in the general admissions process with scores below 470 were accepted after Bakke's application was completed. Id. at 69. There were four special admissions slots unfilled at that time, however, for which Bakke was not considered. Id. at 70. After his 1973 rejection, Bakke wrote to Dr. George H. Lowrey, Associate Dean and Chairman of the Admissions Committee, protesting that the special admissions program operated as a racial and ethnic quota. Id. at 259. Page 438 U. S. 277Bakke's 1974 application was completed early in the year. Id. at 70. His student interviewer gave him an overall rating of 94, finding him "friendly, well tempered, conscientious and delightful to speak with." Id. at 229. His faculty interviewer was, by coincidence, the same Dr. Lowrey to whom he had written in protest of the special admissions program. Dr. Lowrey found Bakke "rather limited in his approach" to the problems of the medical profession, and found disturbing Bakke's "very definite opinions which were based more on his personal viewpoints than upon a study of the total problem." Id. at 226. Dr. Lowrey gave Bakke the lowest of his six ratings, an 86; his total was 549 out of 600. Id. at 230. Again, Bakke's application was rejected. In neither year did the chairman of the admissions committee, Dr. Lowrey, exercise his discretion to place Bakke on the waiting list. Id. at 64. In both years, applicants were admitted under the special program with grade point averages, MCT scores, and benchmark scores significantly lower than Bakke's. [Footnote 7]After the second rejection, Bakke filed the instant suit in the Superior Court of California. [Footnote 8] He sought mandatory, injunctive, and declaratory relief compelling his admission to the Medical School. He alleged that the Medical School's special admissions program operated to exclude him from the Page 438 U. S. 278 school on the basis of his race, in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment, [Footnote 9] Art. I, § 21, of the California Constitution, [Footnote 10] and § 601 of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d. [Footnote 11] The University cross-complained for a declaration that its special admissions program was lawful. The trial Page 438 U. S. 279 court found that the special program operated as a racial quota because minority applicants in the special program were rated only against one another, Record 388, and 16 places in the class of 100 were reserved for them. Id. at 295-296. Declaring that the University could not take race into account in making admissions decisions, the trial court held the challenged program violative of the Federal Constitution, the State Constitution, and Title VI. The court refused to order Bakke's admission, however, holding that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program.Bakke appealed from the portion of the trial court judgment denying him admission, and the University appealed from the decision that its special admissions program was unlawful and the order enjoining it from considering race in the processing of applications. The Supreme Court of California transferred the case directly from the trial court, "because of the importance of the issues involved." 18 Cal. 3d 34, 39, 553 P.2d 1152, 1156 (1976). The California court accepted the findings of the trial court with respect to the University's program. [Footnote 12] Because the special admissions program involved a racial classification, the Supreme Court held itself bound to apply strict scrutiny. Id. at 49, 553 P.2d at 1162-1163. It then turned to the goals of the University presented as justifying the special program. Although the court agreed that the goals of integrating the medical profession and increasing the number of physicians willing to serve members of minority groups were compelling state interests, id. at 53, 553 P.2d at 1165, it concluded that the special admissions program was not the least intrusive means of achieving those goals. Without passing on the state constitutional or federal statutory grounds cited in the trial court's judgment, the California court held Page 438 U. S. 280 that the Equal Protection Clause of the Fourteenth Amendment required that"no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race."Id. at 55, 553 P.2d at 1166.Turning to Bakke's appeal, the court ruled that, since Bakke had established that the University had discriminated against him on the basis of his race, the burden of proof shifted to the University to demonstrate that he would not have been admitted even in the absence of the special admissions program. [Footnote 13] Id. at 63-64, 553 P.2d at 1172. The court analogized Bakke's situation to that of a plaintiff under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-17 (1970 ed., Supp. V), see, e.g., Franks v. Bowman Transportation Co., 424 U. S. 747, 424 U. S. 772 (176). 18 Cal. 3d at 64, 553 P.2d at 1172. On this basis, the court initially ordered a remand for the purpose of determining whether, under the newly allocated burden of proof, Bakke would have been admitted to either the 1973 or the 1974 entering class in the absence of the special admissions program. App. A to Application for Stay 4. In its petition for rehearing below, however, the University conceded its inability to carry that burden. App. B to Application for Stay A19-A20. [Footnote 14] The Page 438 U. S. 281 California court thereupon amended its opinion to direct that the trial court enter judgment ordering Bakke's admission to the Medical School. 18 Cal. 3d at 64, 553. P.2d at 1172. That order was stayed pending review in this Court. 429 U.S. 953 (1976). We granted certiorari to consider the important constitutional issue. 429 U.S. 1090 (1977).IIIn this Court, the parties neither briefed nor argued the applicability of Title VI of the Civil Rights Act of 1964. Rather, as had the California court, they focused exclusively upon the validity of the special admissions program under the Equal Protection Clause. Because it was possible, however, that a decision on Title VI might obviate resort to constitutional interpretation, see Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346-348 (1936) (concurring opinion), we requested supplementary briefing on the statutory issue. 434 U.S. 900 (1977).AAt the outset, we face the question whether a right of action for private parties exists under Title VI. Respondent argues that there is a private right of action, invoking the test set forth in Cort v. Ash, 422 U. S. 66, 422 U. S. 78 (1975). He contends Page 438 U. S. 282 that the statute creates a federal right in his favor, that legislative history reveals an intent to permit private actions, [Footnote 15] that such actions would further the remedial purposes of the statute, and that enforcement of federal rights under the Civil Rights Act generally is not relegated to the States. In addition, he cites several lower court decisions which have recognized or assumed the existence of a private right of action. [Footnote 16] Petitioner denies the existence of a private right of action, arguing that the sole function of § 601, see n 11, supra, was to establish a predicate for administrative action under § 602, 78 Stat. 252, 42 U.S.C. § 2000d-1. [Footnote 17] In its view, administrative curtailment of federal funds under that section was the only sanction to be imposed upon recipients that Page 438 U. S. 283 violated § 601. Petitioner also points out that Title VI contains no explicit grant of a private right of action, in contrast to Titles II, III, IV, and VII, of the same statute, 42 U.S.C. §§ 2000a-3(a), 2000b-2, 2000c-8, and 2000e-5 =(f) (1970 ed. and Supp. V). [Footnote 18]We find it unnecessary to resolve this question in the instant case. The question of respondent's right to bring an action under Title VI was neither argued nor decided in either of the courts below, and this Court has been hesitant to review questions not addressed below. McGoldrick v. Companie Generale Transatlantique, 309 U. S. 430, 309 U. S. 434-435 (1940). See also Massachusetts v. Westcott, 431 U. S. 322 (1977); Cardinale v. Louisiana, 394 U. S. 437, 394 U. S. 439 (1969). Cf. Singleton v. Wulff, 428 U. S. 106, 428 U. S. 121 (1976). We therefore do not address this difficult issue. Similarly, we need not pass Page 438 U. S. 284 upon petitioner's claim that private plaintiffs under Title VI must exhaust administrative remedies. We assume, only for the purposes of this case, that respondent has a right of action under Title VI. See Lau v. Nichols, 414 U. S. 563, 414 U. S. 571 n. 2 (1974) (STEWART, J., concurring in result).BThe language of § 601, 78 Stat. 252, like that of the Equal Protection Clause, is majestic in its sweep:"No 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."The concept of "discrimination," like the phrase "equal protection of the laws," is susceptible of varying interpretations, for, as Mr. Justice Holmes declared,"[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it is used."Towne v. Eisner, 245 U. S. 418, 245 U. S. 425 (1918). We must, therefore, seek whatever aid is available in determining the precise meaning of the statute before us. Train v. Colorado Public Interest Research Group, 426 U. S. 1, 426 U. S. 10 (1976), quoting United States v. American Trucking Assns., 310 U. S. 534, 310 U. S. 543-544 (1940). Examination of the voluminous legislative history of Title VI reveals a congressional intent to halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution. Although isolated statements of various legislators, taken out of context, can be marshaled in support of the proposition that § 601 enacted a purely color-blind scheme, [Footnote 19] without regard to the reach of the Equal Protection Page 438 U. S. 285 Clause, these comments must be read against the background of both the problem that Congress was addressing and the broader view of the statute that emerges from a full examination of the legislative debates.The problem confronting Congress was discrimination against Negro citizens at the hands of recipients of federal moneys. Indeed, the color blindness pronouncements cited in the margin at n19 generally occur in the midst of extended remarks dealing with the evils of segregation in federally funded programs. Over and over again, proponents of the bill detailed the plight of Negroes seeking equal treatment in such programs. [Footnote 20] There simply was no reason for Congress to consider the validity of hypothetical preferences that might be accorded minority citizens; the legislators were dealing with the real and pressing problem of how to guarantee those citizens equal treatment.In addressing that problem, supporters of Title VI repeatedly declared that the bill enacted constitutional principles. For example, Representative Celler, the Chairman of the House Judiciary Committee and floor manager of the legislation in the House, emphasized this in introducing the bill:"The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food Page 438 U. S. 286 surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only white students in programs of high[er] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association."110 Cong.Rec. 1519 (1964) (emphasis added). Other sponsors shared Representative Celler's view that Title VI embodied constitutional principles. [Footnote 21]In the Senate, Senator Humphrey declared that the purpose of Title VI was "to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation." Id. at 6544. Senator Ribicoff agreed that Title VI embraced the constitutional standard:"Basically, there is a constitutional restriction against discrimination in the use of federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction."Id. at 13333. Other Senators expressed similar views. [Footnote 22]Further evidence of the incorporation of a constitutional standard into Title VI appears in the repeated refusals of the legislation's supporters precisely to define the term "discrimination." Opponents sharply criticized this failure, [Footnote 23] but proponents of the bill merely replied that the meaning of Page 438 U. S. 287 "discrimination" would be made clear by reference to the Constitution or other existing law. For example, Senator Humphrey noted the relevance of the Constitution:"As I have said, the bill has a simple purpose. That purpose is to give fellow citizens -- Negroes -- the same rights and opportunities that white people take for granted. This is no more than what was preached by the prophets, and by Christ Himself. It is no more than what our Constitution guarantees."Id. at 6553. [Footnote 24]In view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.IIIAPetitioner does not deny that decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Sipuel v. Board of Regents, 332 U. S. 631 (1948); Sweatt v. Painter, 339 U. S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950). For his part, respondent does not argue that all racial or ethnic classifications are per se invalid. See, e.g., Hirabayashi v. United States, 320 U. S. 81 (1943); Korematsu v. United States, 323 U. S. 214 (1944); Lee v. Washington, 390 U. S. 333, 390 U. S. 334 (1968) (Black, Harlan, and STEWART, JJ., concurring); United Jewish Organizations v. Carey, 430 U. S. 144 (1977). The parties do disagree as to the level of judicial scrutiny to be applied to the special admissions program. Petitioner argues that the court below erred in applying strict scrutiny, as this inexact term has been Page 438 U. S. 288 applied in our cases. That level of review, petitioner asserts, should be reserved for classifications that disadvantage "discrete and insular minorities." See United States v. Carolene Products Co., 304 U. S. 144, 304 U. S. 152 n. 4 (1938). Respondent, on the other hand, contends that the California court correctly rejected the notion that the degree of Judicial scrutiny accorded a particular racial or ethnic classification hinges upon membership in a discrete and insular minority and duly recognized that the "lights established [by the Fourteenth Amendment] are personal rights." Shelley v. Kraemer, 334 U. S. 1, 334 U. S. 22 (1948).En route to this crucial battle over the scope of judicial review, [Footnote 25] the parties fight a sharp preliminary action over the proper characterization of the special admissions program. Petitioner prefers to view it as establishing a "goal" of minority representation in the Medical School. Respondent, echoing the courts below, labels it a racial quota. [Footnote 26] Page 438 U. S. 289This semantic distinction is beside the point: the special admissions program is undeniably a classification based on race and ethnic background. 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. Whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status. [Footnote 27]The guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." It is settled beyond question that the"rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights,"Shelley v. Kraemer, supra at 334 U. S. 22. Accord, Missouri ex rel. Gaines v. Canada, supra at 305 U. S. 351; McCabe v. Atchison, T. & S.F. R. Co., 235 U. S. 151, 235 U. S. 161-162 (1914). The guarantee of equal protection cannot mean one thing when applied to one individual and something else when Page 438 U. S. 290 applied to a person of another color. If both are not accorded the same protection, then it is not equal.Nevertheless, petitioner argues that the court below erred in applying strict scrutiny to the special admissions program because white males, such as respondent, are not a "discrete and insular minority" requiring extraordinary protection from the majoritarian political process. Carolene Products Co., supra at 304 U. S. 152-153, n. 4. This rationale, however, has never been invoked in our decisions as a prerequisite to subjecting racial or ethnic distinctions to strict scrutiny. Nor has this Court held that discreteness and insularity constitute necessary preconditions to a holding that a particular classification is invidious. [Footnote 28] See, e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 316 U. S. 541 (1942); Carrington v. Rash, 380 U. S. 89, 380 U. S. 96-97 (1965). These characteristics may be relevant in deciding whether or not to add new types of classifications to the list of "suspect" categories or whether a particular classification survives close examination. See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 427 U. S. 313 (1976) (age); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 411 U. S. 28 (1973) (wealth); Graham v. Richardson, 403 U. S. 365, 403 U. S. 372 (1971) (aliens). Racial and ethnic classifications, however, are subject to stringent examination without regard to these additional characteristics. We declared as much in the first cases explicitly to recognize racial distinctions as suspect:"Distinctions between citizens solely because of their ancestry are, by their very nature, odious to a free people Page 438 U. S. 291 whose institutions are founded upon the doctrine of equality."Hirabayashi, 320 U.S. at 320 U. S. 100."[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny."Korematsu, 323 U.S. at 323 U. S. 216. The Court has never questioned the validity of those pronouncements. Racial and ethnic distinctions of any sort are inherently suspect, and thus call for the most exacting judicial examination.BThis perception of racial and ethnic distinctions is rooted in our Nation's constitutional and demographic history. The Court's initial view of the Fourteenth Amendment was that its "one pervading purpose" was"the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised dominion over him."Slaughter-House Cases, 16 Wall. 36, 83 U. S. 71 (1873). The Equal Protection Clause, however, was "[v]irtually strangled in infancy by post-civil-war judicial reactionism." [Footnote 29] It was relegated to decades of relative desuetude while the Due Process Clause of the Fourteenth Amendment, after a short germinal period, flourished as a cornerstone in the Court's defense of property and liberty of contract. See, e.g., Mugler v. Kansas, 123 U. S. 623, 123 U. S. 661 (1887); Allgeyer v. Louisiana, 165 U. S. 578 (1897); Lochner v. New York, 198 U. S. 45 (1905). In that cause, the Fourteenth Amendment's "one pervading purpose" was displaced. See, e.g., Plessy v. Ferguson, 163 U. S. 537 (1896). It was only as the era of substantive due process came to a close, see, e.g., 291 U. S. New Page 438 U. S. 292 York, 291 U. S. 502 (1934); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), that the Equal Protection Clause began to attain a genuine measure of vitality, see, e.g., United States v. Carolene Products, 304 U. S. 144 (1938); Skinner v. Oklahoma ex rel. Williamson, supra.By that time ,it was no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority. During the dormancy of the Equal Protection Clause, the United States had become a Nation of minorities. [Footnote 30] Each had to struggle [Footnote 31] -- and, to some extent, struggles still [Footnote 32] -- to overcome the prejudices not of a monolithic majority, but of a "majority" composed of various minority groups of whom it was said -- perhaps unfairly, in many cases -- that a shared characteristic was a willingness to disadvantage other groups. [Footnote 33] As the Nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination. See Strauder v. West Virginia, 100 U. S. 303, 100 U. S. 308 (1880) (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (Chinese); Truax v. Raich, 239 U. S. 33, 239 U. S. 41 (1915) (Austrian resident aliens); Korematsu, supra, (Japanese); Hernandez v. Texas, 347 U. S. 475 (1954) (Mexican-Americans). The guarantees of equal protection, said the Court in Page 438 U. S. 293 Yick Wo,"are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws."118 U.S. at 118 U. S. 369.Although many of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white "majority," Slaughter-House Cases, supra, the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude. As this Court recently remarked in interpreting the 1866 Civil Rights Act to extend to claims of racial discrimination against white persons,"the 39th Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves."McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 427 U. S. 296 (1976). And that legislation was specifically broadened in 1870 to ensure that "all persons," not merely "citizens," would enjoy equal rights under the law. See Runyon v. McCrary, 427 U. S. 160, 427 U. S. 192-202 (1976) (WHITE, J., dissenting). Indeed, it is not unlikely that, among the Framers, were many who would have applauded a reading of the Equal Protection Clause that states a principle of universal application and is responsive to the racial, ethnic, and cultural diversity of the Nation. See, e.g., Cong.Globe, 39th Cong., 1st Sess., 1056 (1866) (remarks of Rep. Niblack); id. at 2891-2892 (remarks of Sen. Conness); id. 40th Cong., 2d Sess., 883 (1868) (remarks of Sen. Howe) (Fourteenth Amendment "protect[s] classes from class legislation"). See also Bickel, The Original Understanding and the Segregation Decision, 69 Harv.L.Rev. 1, 60-63 (1955).Over the past 30 years, this Court has embarked upon the crucial mission of interpreting the Equal Protection Clause with the view of assuring to all persons "the protection of Page 438 U. S. 294 equal laws," Yick Wo, supra at 118 U. S. 369, in a Nation confronting a legacy of slavery and racial discrimination. See, e.g., Shelley v. Kraemer, 334 U. S. 1 (1948); Brown v. Bard of Education, 347 U. S. 483 (1954); Hills v. Gautreaux, 425 U. S. 284 (1976). Because the landmark decisions in this area arose in response to the continued exclusion of Negroes from the mainstream of American society, they could be characterized as involving discrimination by the "majority" white race against the Negro minority. But they need not be read as depending upon that characterization for their results. It suffices to say that,"[o]ver the years, this Court has consistently repudiated '[d]istinctions between citizens solely because of their ancestry' as being 'odious to a free people whose institutions are founded upon the doctrine of equality.'"Loving v. Virginia, 388 U. S. 1, 388 U. S. 11 (1967), quoting Hirabayashi, 320 U.S. at 320 U. S. 100.Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause, and hold that discrimination against members of the white "majority" cannot be suspect if its purpose can be characterized as "benign." [Footnote 34] Page 438 U. S. 295 The clock of our liberties, however, cannot be turned back to 1868. Brown v. Board of Education, supra at 347 U. S. 492; accord, Loving v. Virginia supra at 388 U. S. 9. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others. [Footnote 35]"The Fourteenth Amendment is not directed solely against discrimination due to a 'two-class theory' -- that is, bad upon differences between 'white' and Negro."Hernandez, 347 U.S. at 347 U. S. 478.Once the artificial line of a "two-class theory" of the Fourteenth Amendment is put aside, the difficulties entailed in varying the level of judicial review according to a perceived "preferred" status of a particular racial or ethnic minority are intractable. The concepts of "majority" and "minority" necessarily reflect temporary arrangements and political judgments. As observed above, the white "majority" itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance Page 438 U. S. 296 of distinctions drawn in terms of race and nationality, for then the only "majority" left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit "heightened judicial solicitude" and which would not. [Footnote 36] Courts would be asked to evaluate the extent of the prejudice and consequent Page 438 U. S. 297 harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence -- even if they otherwise were politically feasible and socially desirable. [Footnote 37] Page 438 U. S. 298Moreover, there are serious problems of justice connected with the idea of preference itself. First, it may not always be clear that a so-called preference is, in fact, benign. Courts may be asked to validate burdens imposed upon individual members of a particular group in order to advance the group's general interest. See United Jewish Organizations v. Carey, 430 U.S. at 430 U. S. 172-173 (BRENNAN, J., concurring in part). Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. See DeFunis v. Odegaard, 416 U. S. 312, 416 U. S. 343 (1974) (Douglas, J., dissenting). Third, there is a measure of inequity in forcing innocent persons in respondent's position to bear the burdens of redressing grievances not of their making.By hitching the meaning of the Equal Protection Clause to these transitory considerations, we would be holding, as a constitutional principle, that judicial scrutiny of classifications touching on racial and ethnic background may vary with the ebb and flow of political forces. Disparate constitutional tolerance of such classifications well may serve to exacerbate Page 438 U. S. 299 racial and ethnic antagonisms, rather than alleviate them. United Jewish Organizations, supra at 430 U. S. 173-174 (BRENNAN, J., concurring in part). Also, the mutability of a constitutional principle, based upon shifting political and social judgments, undermines the chances for consistent application of the Constitution from one generation to the next, a critical feature of its coherent interpretation. Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 157 U. S. 650-651 (1895) (White, J., dissenting). In expounding the Constitution, the Court's role is to discern"principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the level of the pragmatic political judgments of a particular time and place."A. Cox, The Role of the Supreme Court in American Government 114 (1976).If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently. Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, Korematsu v. United States, 323 U. S. 214 (1944), but the standard of justification will remain constant. This is as it should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process. [Footnote 38] When they touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. The Constitution guarantees that right to every person regardless of his background. Shelley v. Kraemer, 334 U.S. at 334 U. S. 22; Missouri ex rel. Gaines v. Canada, 305 U.S. at 305 U. S. 351. Page 438 U. S. 300CPetitioner contends that, on several occasions, this Court has approved preferential classifications without applying the most exacting scrutiny. Most of the cases upon which petitioner relies are drawn from three areas: school desegregation, employment discrimination, and sex discrimination. Each of the cases cited presented a situation materially different from the facts of this case.The school desegregation cases are inapposite. Each involved remedies for clearly determined constitutional violations. E.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); Green v. County School Board, 391 U. S. 430 (1968). Racial classifications thus were designed as remedies for the vindication of constitutional entitlement. [Footnote 39] Moreover, the scope of the remedies was not permitted to exceed the extent of the Page 438 U. S. 301 violations. E.g., Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977); Milliken v. Bradley, 418 U. S. 717 (1974); see Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976). See also Austin Independent School Dist. v. United States, 429 U.S. 990, 991-995 (1976) (POWELL, J., concurring). Here, there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification.The employment discrimination cases also do not advance petitioner's cause. For example, in Franks v. Bowman Transportation Co., 424 U. S. 747 (1976), we approved a retroactive award of seniority to a class of Negro truckdrivers who had been the victims of discrimination -- not just by society at large, but by the respondent in that case. While this relief imposed some burdens on other employees, it was held necessary "to make [the victims] whole for injuries suffered on account of unlawful employment discrimination.'" Id. at 424 U. S. 763, quoting Albemarle Paper Co. v. Moody, 422 U. S. 405, 422 U. S. 418 (1975). The Courts of Appeals have fashioned various types of racial preferences as remedies for constitutional or statutory violations resulting in identified, race-based injuries to individuals held entitled to the preference. E.g., Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (CA2 1973); Carter v. Gallagher, 452 F.2d 315 (CA8 1972), modified on rehearing en banc, id. at 327. Such preferences also have been upheld where a legislative or administrative body charged with the responsibility made determinations of past discrimination by the industries affected, and fashioned remedies deemed appropriate to rectify the discrimination. E.g., Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (CA3), cert. denied, 404 U.S. 854 (1971); [Footnote 40] Associated General Page 438 U. S. 302 Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (CA1 1973), cert. denied, 416 U.S. 957 (1974); cf. Katzenbach v. Morgan, 384 U. S. 641 (1966). But we have never approved preferential classifications in the absence of proved constitutional or statutory violations. [Footnote 41]Nor is petitioner's view as to the applicable standard supported by the fact that gender-based classifications are not subjected to this level of scrutiny. E g., Califano v. Webster, 430 U. S. 313, 430 U. S. 316-317 (1977); Craig v. Boren, 429 U. S. 190, 429 U. S. 211 n. (1976) (POWELL, J., concurring). Gender-based distinctions are less likely to create the analytical and practical Page 438 U. S. 303 problems present in preferential programs premised on racial or ethnic criteria. With respect to gender, there are only two possible classifications. The incidence of the burdens imposed by preferential classifications is clear. There are no rival groups which can claim that they, too, are entitled to preferential treatment. Classwide questions as to the group suffering previous injury and groups which fairly can be burdened are relatively manageable for reviewing courts. See, e.g., Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 212-217 (1977); Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S. 645 (1975). The resolution of these same questions in the context of racial and ethnic preferences presents far more complex and intractable problems than gender-based classifications. More importantly, the perception of racial classifications as inherently odious stems from a lengthy and tragic history that gender-based classifications do not share. In sum, the Court has never viewed such classification as inherently suspect or as comparable to racial or ethnic classifications for the purpose of equal protection analysis.Petitioner also cites Lau v. Nichols, 414 U. S. 563 (1974), in support of the proposition that discrimination favoring racial or ethnic minorities has received judicial approval without the exacting inquiry ordinarily accorded "suspect" classifications. In Lau, we held that the failure of the San Francisco school system to provide remedial English instruction for some 1,800 students of oriental ancestry who spoke no English amounted to a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the regulations promulgated thereunder. Those regulations required remedial instruction where inability to understand English excluded children of foreign ancestry from participation in educational programs. 414 U.S. at 414 U. S. 568. Because we found that the students in Lau were denied "a meaningful opportunity to participate in the educational program," ibid., we remanded for the fashioning of a remedial order. Page 438 U. S. 304Lau provides little support for petitioner's argument. The decision rested solely on the statute, which had been construed by the responsible administrative agency to each educational practices "which have the effect of subjecting individuals to discrimination," ibid. We stated:"Under these state-imposed standards, there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum, for students who do not understand English are effectively foreclosed from any meaningful education."Id. at 414 U. S. 566. Moreover, the "preference" approved did not result in the denial of the relevant benefit -- "meaningful opportunity to participate in the educational program" -- to anyone else. No other student was deprived by that preference of the ability to participate in San Francisco's school system, and the applicable regulations required similar assistance for all students who suffered similar linguistic deficiencies. Id. at 414 U. S. 570-571 (STEWART, J., concurring in result).In a similar vein, [Footnote 42] petitioner contends that our recent decision in United Jewish Organization v. Carey, 430 U. S. 144 (1977), indicates a willingness to approve racial classifications designed to benefit certain minorities, without denominating the classifications as "suspect." The State of New York had redrawn its reapportionment plan to meet objections of the Department of Justice under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970 ed., Supp. V). Specifically, voting districts were redrawn to enhance the electoral power Page 438 U. S. 305 of certain "nonwhite" voters found to have been the victims of unlawful "dilution" under the original reapportionment plan. United Jewish Organizations, like Lau, properly is viewed as a case in which the remedy for an administrative finding of discrimination encompassed measures to improve the previously disadvantaged group's ability to participate, without excluding individuals belonging to any other group from enjoyment of the relevant opportunity -- meaningful participation in the electoral process.In this case, unlike Lau and United Jewish Organizations, there has been no determination by the legislature or a responsible administrative agency that the University engaged in a discriminatory practice requiring remedial efforts. Moreover, the operation of petitioner's special admissions program is quite different from the remedial measures approved in those cases. It prefers the designated minority groups at the expense of other individuals who are totally foreclosed from competition for the 16 special admissions seats in every Medical School class. Because of that foreclosure, some individuals are excluded from enjoyment of a state-provided benefit -- admission to the Medical School -- they otherwise would receive. When a classification denies an individual opportunities or benefits enjoyed by others solely because of his race or ethnic background, it must be regarded as suspect. E.g., McLaurin v. Oklahoma State Regents, 339 U.S. at 339 U. S. 641-642.IVWe have held that, in"order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is 'necessary . . . to the accomplishment' of its purpose or the safeguarding of its interest."In re Griffiths, 413 U. S. 717, 413 U. S. 721-722 (1973) (footnotes omitted); Loving v. Virginia, 388 U.S. at 388 U. S. 11; McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 196 (1964). The special admissions Page 438 U. S. 306 program purports to serve the purposes of: (i) "reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession," Brief for Petitioner 32; (ii) countering the effects of societal discrimination; [Footnote 43] (iii) increasing the number of physicians who will practice in communities currently underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body. It is necessary to decide which, if any, of these purposes is substantial enough to support the use of a suspect classification. Page 438 U. S. 307AIf petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial, but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids. E.g., Loving v. Virginia, supra at 388 U. S. 11; McLaughlin v. Florida, supra at 379 U. S. 198; Brown v. Board of Education, 347 U. S. 483 (1954).BThe State certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination. The line of school desegregation cases, commencing with Brown, attests to the importance of this state goal and the commitment of the judiciary to affirm all lawful means toward its attainment. In the school cases, the States were required by court order to redress the wrongs worked by specific instances of racial discrimination. That goal was far more focused than the remedying of the effects of "societal discrimination," an amorphous concept of injury that may be ageless in its reach into the past.We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations. See, e.g., Teamsters v. United States, 431 U. S. 324, 431 U. S. 367-376 (1977); United Jewish Organizations, 430 U.S. at 430 U. S. 155-156; South Carolina v. Katzenbach, 383 U. S. 301, 383 U. S. 308 (1966). After such findings have been made, the governmental interest in preferring members of the injured groups at the expense of others is substantial, since the legal rights of the victims must be vindicated. In such a case, the Page 438 U. S. 308 extent of the injury and the consequent remedy will have been judicially, legislatively, or administratively defined. Also, the remedial action usually remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit. Without such findings of constitutional or statutory violations, [Footnote 44] it cannot be Page 438 U. S. 309 said that the government has any greater interest in helping one individual than in refraining from harming another. Thus, the government has no compelling justification for inflicting such harm.Petitioner does not purport to have made, and is in no position to make, such findings. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality. For reasons similar to those stated in 438 U. S. isolated segments of our vast governmental structures are not competent to make those decisions, at least in the absence of legislative mandates and legislatively determined criteria. [Footnote 45] Cf. Hampton v. Mow Sun Wong, 426 U. S. 88 (1976); n. 41, supra. Before relying upon these sorts of findings in establishing a racial classification, a governmental body must have the authority and capability to establish, in the record, that the classification is responsive to identified discrimination. See, e.g., Califano v. Webster, 430 U.S. at 430 U. S. 316-321; Califano Page 438 U. S. 310 v. Goldfarb, 430 U.S. at 430 U. S. 212-217. Lacking this capability, petitioner has not carried its burden of justification on this issue.Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of "societal discrimination" does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered. To hold otherwise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination. That is a step we have never approved. Cf. Pasadena Cty Board of Education v. Spangler, 427 U. S. 424 (1976).CPetitioner identifies, as another purpose of its program, improving the delivery of health care services to communities currently underserved. It may be assumed that, in some situations, a State's interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner's special admissions program is either needed or geared to promote that goal. [Footnote 46] The court below addressed this failure of proof:"The University concedes it cannot assure that minority doctors who entered under the program, all of whom expressed an 'interest' in practicing in a disadvantaged community, will actually do so. It may be correct to assume that some of them will carry out this intention, and that it is more likely they will practice in minority Page 438 U. S. 311 communities than the average white doctor. (See Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role (1975) 42 U.Chi.L.Rev. 653, 688.) Nevertheless, there are more precise and reliable ways to identify applicants who are genuinely interested in the medical problems of minorities than by race. An applicant of whatever race who has demonstrated his concern for disadvantaged minorities in the past and who declares that practice in such a community is his primary professional goal would be more likely to contribute to alleviation of the medical shortage than one who is chosen entirely on the basis of race and disadvantage. In short, there is no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive."18 Cal. 3d at 56, 553 P.2d at 1167.Petitioner simply has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health care delivery to deprived citizens. Indeed, petitioner has not shown that its preferential classification is likely to have any significant effect on the problem. [Footnote 47]DThe fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally permissible Page 438 U. S. 312 goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. Mr. Justice Frankfurter summarized the "four essential freedoms" that constitute academic freedom:"'It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university -- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'"Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 263 (1957) (concurring in result).Our national commitment to the safeguarding of these freedoms within university communities was emphasized in Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 603 (1967):"Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment. . . . The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.' United States v. Associated Press, 52 F. Supp. 362, 372."The atmosphere of "speculation, experiment and creation" -- so essential to the quality of higher education -- is widely believed to be promoted by a diverse student body. [Footnote 48] As the Court Page 438 U. S. 313 noted in Keyishian, it is not too much to say that the "nation's future depends upon leaders trained through wide exposure" to the ideas and mores of students as diverse as this Nation of many peoples.Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the "robust exchange of ideas," petitioner invokes a countervailing constitutional interest, that of the First Amendment. In this light, petitioner must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission.It may be argued that there is greater force to these views at the undergraduate level than in a medical school, where the training is centered primarily on professional competency. But even at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial. In Sweatt v. Painter, 339 U.S. at 339 U. S. 634, the Page 438 U. S. 314 Court made a similar point with specific reference to legal education:"The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students, and no one who has practiced law, would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned."Physicians serve a heterogeneous population. An otherwise qualified medical student with a particular background -- whether it be ethnic, geographic, culturally advantaged or disadvantaged -- may bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity. [Footnote 49]Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded. Respondent urges -- and the courts below have held -- that petitioner's dual admissions program is a racial classification that impermissibly infringes his rights under the Fourteenth Amendment. As the interest of diversity is compelling in the context of a university's admissions program, the question remains whether the Page 438 U. S. 315 program's racial classification is necessary to promote this interest. In re Griffiths, 413 U.S. at 413 U. S. 721-722.VAIt may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner's argument that this is the only effective means of serving the interest of diversity is seriously flawed. In a most fundamental sense, the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin is but a single, though important, element. Petitioner's special admissions program, focused solely on ethnic diversity, would hinder, rather than further, attainment of genuine diversity. [Footnote 50]Nor would the state interest in genuine diversity be served by expanding petitioner's two-track system into a multi-track program with a prescribed number of seats set aside for each identifiable category of applicants. Indeed, it is inconceivable that a university would thus pursue the logic of petitioner's two-track program to the illogical end of insulating each category of applicants with certain desired qualifications from competition with all other applicants. Page 438 U. S. 316The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. An illuminating example is found in the Harvard College program:"In recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students. . . .""In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are 'admissible' and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. . . . [See 438 U.S. 265app|>Appendix hereto.]""In Harvard College admissions, the Committee has not set target quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. . . . But that awareness [of the necessity of including more than a token number of black students] does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that, in choosing among thousands of applicants who are not only 'admissible' academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many Page 438 U. S. 317 types and categories of students."App. to Brief for Columbia University, Harvard University, Stanford University, and the University of Pennsylvania, as Amici Curiae 2-3.In such an admissions program, [Footnote 51] race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may 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. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a Page 438 U. S. 318 particular quality may vary from year to year depending upon the "mix" both of the student body and the applicants for the incoming class.This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a "plus" on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment. [Footnote 52]It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated -- but no less effective -- means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner's preference program, and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element -- to be weighed fairly against other elements -- in the selection process. "A boundary line," as Mr. Justice Frankfurter remarked in another connection, "is none the worse for being narrow." McLeod v. Dilworth, 322 U. S. 327, 322 U. S. 329 (1944). And a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith Page 438 U. S. 319 would be presumed in the absence of a showing to the contrary in the manner permitted by our cases. See, e.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977); Washington v. Davis, 426 U. S. 229 (1976); Swain v. Alabama, 380 U. S. 202 (165). [Footnote 53]BIn summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred Page 438 U. S. 320 applicants have the opportunity to compete for every seat in the class.The fatal flaw in petitioner's preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S. at 334 U. S. 22. Such rights are not absolute. But when a State's distribution of benefits or imposition of burdens hinges on ancestry or the color of a person's skin, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest. Petitioner has failed to carry this burden. For this reason, that portion of the California court's judgment holding petitioner's special admissions program invalid under the Fourteenth Amendment must be affirmed.CIn enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court's judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.VIWith respect to respondent's entitlement to an injunction directing his admission to the Medical School, petitioner has conceded that it could not carry its burden of proving that, but for the existence of its unlawful special admissions program, respondent still would not have been admitted. Hence, respondent is entitled to the injunction, and that portion of the judgment must be affirmed. [Footnote 54] Page 438 U. S. 321|438 U.S. 265app|APPENDIX TO OPINION OF POWELL, J.Harvard College Admissions Program [Footnote 55]For the past 30 years, Harvard College has received each year applications for admission that greatly exceed the number of places in the freshman class. The number of applicants who are deemed to be not "qualified" is comparatively small. The vast majority of applicants demonstrate through test scores, high school records and teachers' recommendations that they have the academic ability to do adequate work at Harvard, and perhaps to do it with distinction. Faced with the dilemma of choosing among a large number of "qualified" candidates, the Committee on Admissions could use the single criterion of scholarly excellence and attempt to determine who among the candidates were likely to perform best academically. But for the past 30 years, the Committee on Admissions has never adopted this approach. The belief has been that, if scholarly excellence were the sole or even predominant criterion, Harvard College would lose a great deal of its vitality and intellectual excellence, and that the quality of the educational Page 438 U. S. 322 experience offered to all students would suffer. Final Report of W. J. Bender, Chairman of the Admission and Scholarship Committee and Dean of Admissions and Financial Aid, pp. 20 et seq. (Cambridge, 1960). Consequently, after selecting those students whose intellectual potential will seem extraordinary to the faculty -- perhaps 150 or so out of an entering class of over 1,100 -- the Committee seeks --"variety in making its choices. This has seemed important . . . in part because it adds a critical ingredient to the effectiveness of the educational experience [in Harvard College]. . . . The effectiveness of our students' educational experience has seemed to the Committee to be affected as importantly by a wide variety of interests, talents, backgrounds and career goals as it is by a fine faculty and our libraries, laboratories and housing arrangements."Dean of Admissions Fred L. Glimp, Final Report to the Faculty of Arts and Sciences, 65 Official Register of Harvard University No. 25, 93, 10105 (1968) (emphasis supplied).The belief that diversity adds an essential ingredient to the educational process has long been a tenet of Harvard College admissions. Fifteen or twenty years ago, however, diversity meant students from California, New York, and Massachusetts; city dwellers and farm boys; violinists, painters and football players; biologists, historians and classicists; potential stockbrokers, academics and politicians. The result was that very few ethnic or racial minorities attended Harvard College. In recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans, but also blacks and Chicanos and other minority students. Contemporary conditions in the United States mean that, if Harvard College is to continue to offer a first-rate education to its students, Page 438 U. S. 323 minority representation in the undergraduate body cannot be ignored by the Committee on Admissions.In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are "admissible" and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students in Harvard College depends in part on these differences in the background and outlook that students bring with them.In Harvard College admissions, the Committee has not set target quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. At the same time the Committee is aware that, if Harvard College is to provide a truly heterogen[e]ous environment that reflects the rich diversity of the United States, it cannot be provided without some attention to numbers. It would not make sense, for example, to have 10 or 20 students out of 1, 100 whose homes are west of the Mississippi. Comparably, 10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States. Their small numbers might also create a sense of isolation among the black students themselves, and thus make it more difficult for them to develop and achieve their potential. Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted. But Page 438 U. S. 324 that awareness does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that, in choosing among thousands of applicants who are not only "admissible" academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students.The further refinements sometimes required help to illustrate the kind of significance attached to race. 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 dependent upon race but sometimes associated with it.* MR. JUSTICE STEVENS views the judgment of the California court as limited to prohibiting the consideration of race only in passing upon Bakke's application. Post at 438 U. S. 408-411. It must be remembered, however, that petitioner here cross-complained in the trial court for a declaratory judgment that its special program was constitutional, and it lost. The trial court's judgment that the special program was unlawful was affirmed by the California Supreme Court in an opinion which left no doubt that the reason for its holding was petitioner's use of race in consideration of ay candidate's application. Moreover, in explaining the scope of its holding, the court quite clearly stated that petitioner was prohibited from taking race into account in any way in making admissions decisions:"In addition, the University may properly as it in fact does, consider other factors in evaluating an applicant, such as the personal interview, recommendations, character, and matters relating to the needs of the profession and society, such as an applicant's professional goals. In short, the standards for admission employed by the University are not constitutionally infirm except to the extent that they are utilized in a racially discriminatory manner. Disadvantaged applicants of all races must be eligible for sympathetic consideration, and no applicant may be rejected because of his race in favor of another who is less qualified, as measured by standards applied without regard to race. We reiterate, in view of the dissent's misinterpretation, that we do not compel the University to utilize only 'the highest objective academic credentials' as the criterion for admission."18 Cal. 3d 34, 54-55, 553 P.2d 1152, 1166 (1976) (footnote omitted). This explicit statement makes it unreasonable to assume that the reach of the California court's judgment can be limited in the manner suggested by MR. JUSTICE STEVENS.** MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN join Parts I and V-C of this opinion. MR. JUSTICE WHITE also joins Part III-A of this opinion.[Footnote 1]Material distributed to applicants for the class entering in 1973 described the special admissions program as follows:"A special subcommittee of the Admissions Committee, made up of faculty and medical students from minority groups, evaluates applications from economically and/or educationally disadvantaged backgrounds. The applicant may designate on the application form that he or she requests such an evaluation. Ethnic minorities are not categorically considered under the Task Force Program unless they are from disadvantaged backgrounds. Our goals are: 1) A short-range goal in the identification and recruitment of potential candidates for admission to medical school in the near future, and 2) Our long-range goal is to stimulate career interest in health professions among junior high and high school students.""After receiving all pertinent information selected applicants will receive a letter inviting them to our School of Medicine in Davis for an interview. The interviews are conducted by at least one faculty member and one student member of the Task Force Committee. Recommendations are then made to the Admissions Committee of the medical school. Some of the Task Force Faculty are also members of the Admissions Committee.""Long-range goals will be approached by meeting with counselors and students of schools with large minority populations, as well as with local youth and adult community groups.""Applications for financial aid are available only after the applicant has been accepted, and can only be awarded after registration. Financial aid is available to students in the form of scholarships and loans. In addition to the Regents' Scholarships and President's Scholarship programs, the medical school participates in the Health Professions Scholarship Program, which makes funds available to students who otherwise might not be able to pursue a medical education. Other scholarships and awards are available to students who meet special eligibility qualifications. Medical students are also eligible to participate in the Federally Insured Student Loan Program and the American Medical Association Education and Research Foundation Loan Program."Applications for Admission are available from:Admissions OfficeSchool of MedicineUniversity of CaliforniaDavis, California 95616Record 195. The letter distributed the following year was virtually identical, except that the third paragraph was omitted.[Footnote 2]For the 1973 entering class of 100 seats, the Davis Medical School received 2,464 applications. Id. at 117. For the 1974 entering class, 3,737 applications were submitted. Id. at 289.[Footnote 3]That is, applications were considered and acted upon as they were received, so that the process of filling the class took place over a period of months, with later applications being considered against those still on file from earlier in the year. Id. at 64.[Footnote 4]The chairman normally checked to see if, among other things, the applicant had been granted a waiver of the school's application fee, which required a means test; whether the applicant had worked during college or interrupted his education to support himself or his family; and whether the applicant was a member of a minority group. Id. at 666.[Footnote 5]For the class entering in 1973, the total number of special applicants was 297, of whom 73 were white. In 1974, 628 persons applied to the special committee, of whom 172 were white. Id. at 133-134.[Footnote 6]The following table provides a year-by-year comparison of minority admissions at the Davis Medical School:bwm:Special Admissions Program General Admissions Total---------------------------- ---------------------- -----Blacks Chicanos Asians Total Blacks Chicanos Asians Total1970. . . . 5 3 0 8 0 0 4 4 121971. . . . 4 9 2 15 1 0 8 9 241972. . . . 5 6 5 16 0 0 11 11 271973. . . . 6 8 2 16 0 2 13 15 311974. . . . 6 7 3 16 0 4 5 9 25ewm:Id. at 216-218. Sixteen persons were admitted under the special program in 1974, ibid., but one Asian withdrew before the start of classes, and the vacancy was filled by a candidate from the general admissions waiting list. Brief for Petitioner 4 n. 5.[Footnote 7]The following table compares Bakke's science grade point average, overall grade point average, and MCAT scores with the average scores of regular admittees and of special admittees in both 1973 and 1974. Record 210, 223, 231, 234:bwm:Class Entering in 1973MCAT (Percentiles)Quanti- Gen.SGPA OGPA Verbal tative Science Infor.Bakke . . . . . . . 3.44 3.46 96 94 97 72Average of regularadmittees. . . . . 3.51 3.49 81 76 83 69Average of specialadmittees. . . . . 2.62 2.88 46 24 35 33Class Entering in 1974MCAT (Percentiles)Quanti- Gen.SGPA OGPA Verbal tative Science Infor.Bakke. . . . . . . . 3.44 3.46 96 94 97 72Average of regularadmittees. . . . . 3.36 3.29 69 67 82 72Average of specialadmittees. . . . . 2.42 2.62 34 30 37 18ewm:Applicants admitted under the special program also had benchmark scores significantly lower than many students, including Bakke, rejected under the general admissions program, even though the special rating system apparently gave credit for overcoming "disadvantage." Id. at 181, 388.[Footnote 8]Prior to the actual filing of the suit, Bakke discussed his intentions with Peter C. Storandt, Assistant to the Dean of Admissions at the Davis Medical School. Id. at 259-269. Storandt expressed sympathy for Bakke's position and offered advice on litigation strategy. Several amici imply that these discussions render Bakke's suit "collusive." There is no indication, however, that Storandt's views were those of the Medical School, or that anyone else at the school even was aware of Storandt's correspondence and conversations with Bakke. Storandt is no longer with the University.[Footnote 9]"[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws."[Footnote 10]"No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens."This section was recently repealed, and its provisions added to Art. I, § 7, of the State Constitution.[Footnote 11]Section 601 of Title VI, 78 Stat. 252, provides as follows:"No 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."[Footnote 12]Indeed, the University did not challenge the finding that applicants who were not members of a minority group were excluded from consideration in the special admissions process. 18 Cal. 3d at 44, 553 P.2d at 1159.[Footnote 13]Petitioner has not challenged this aspect of the decision. The issue of the proper placement of the burden of proof, then, is not before us.[Footnote 14]Several amici suggest that Bakke lacks standing, arguing that he never showed that his injury -- exclusion from the Medical School -- will be redressed by a favorable decision, and that the petitioner "fabricated" jurisdiction by conceding its inability to meet its burden of proof. Petitioner does not object to Bakke's standing, but inasmuch as this charge concerns our jurisdiction under Art. III, it must be considered and rejected. First, there appears to be no reason to question the petitioner's concession. It was not an attempt to stipulate to a conclusion of law or to disguise actual facts of record. Cf. Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281 (1917).Second, even if Bakke had been unable to prove that he would have been admitted in the absence of the special program, it would not follow that he lacked standing. The constitutional element of standing is plaintiff's demonstration of any injury to himself that is likely to be redressed by favorable decision of his claim. Warth v. Seldin, 422 U. S. 490, 422 U. S. 498 (1975). The trial court found such an injury, apart from failure to be admitted, in the University's decision not to permit Bakke to compete for all 100 places in the class, simply because of his race. Record 323. Hence, the constitutional requirements of Art. III were met. The question of Bakke's admission vel non is merely one of relief.Nor is it fatal to Bakke's standing that he was not a "disadvantaged" applicant. Despite the program's purported emphasis on disadvantage, it was a minority enrollment program with a secondary disadvantage element. White disadvantaged students were never considered under the special program, and the University acknowledges that its goal in devising the program was to increase minority enrollment.[Footnote 15]See, e.g., 110 Cong.Rec. 5255 (1964) (remarks of Sen. Case).[Footnote 16]E.g., Bossier Parish School Board v. Lemon, 370 F.2d 847, 851-852 (CA5), cert. denied, 388 U.S. 911 (1967); Natonbah v. Board of Education, 355 F. Supp. 716, 724 (NM 1973); cf. Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-1287 (CA7 1977) (Title V of Rehabilitation Act of 1973, 29 U.S.C. § 790 et seq. (1976 ed.)); Piascik v. Cleveland Museum of Art, 426 F. Supp. 779, 780 n. 1 (ND Ohio 1976) (Title IX of Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (1976 ed.)).[Footnote 17]Section 602, as set forth in 42 U.S.C. § 2000d-1, reads as follows:"Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be �limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or(2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report."[Footnote 18]Several comments in the debates cast doubt on the existence of any intent to create a private right of action. For example, Representative Gill stated that no private right of action was contemplated:"Nowhere in this section do you find a comparable right of legal action for a person who feels he has been denied his rights to participate in the benefits of Federal funds. Nowhere. Only those who have been cut off can go to court and present their claim."110 Cong.Rec. 2467 (1964). Accord, id. at 7065 (remarks of Sen. Keating); 6562 (remarks of Sen. Kuchel).[Footnote 19]For example, Senator Humphrey stated as follows:"Racial discrimination or segregation in the administration of disaster relief is particularly shocking; and offensive to our sense of justice and fair play. Human suffering draws no color lines, and the administration of help to the sufferers should not."Id. at 6547. See also id. at 12675 (remarks of Sen. Allott); 6561 (remarks of Sen. Kuchel); 2494, 6047 (remarks of Sen. Pastore). But see id. at 15893 (remarks of Rep. MacGregor); 13821 (remarks of Sen. Saltonstall); 10920 (remarks of Sen. Javits); 5266, 5807 (remarks of Sen. Keating).[Footnote 20]See, e.g., id. at 7064-7065 (remarks of Sen. Ribicoff); 7054-7055 (remarks of Sen. Pastore); 6543-6544 (remarks of Sen. Humphrey); 2595 (remarks of Rep. Donohue); 2467-2468 (remarks of Rep. Celler); 1643, 2481-2482 (remarks of Rep. Ryan); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, pp. 24-25 (1963).[Footnote 21]See, e.g., 110 Cong.Rec. 2467 (1964) (remarks of Rep. Lindsay). See also id. at 2766 (remarks of Rep. Matsunaga); 2731-2732 (remarks of Rep. Dawson); 2595 (remarks of Rep. Donohue); 1527-1528 (remarks of Rep. Celler).[Footnote 22]See, e.g., id. at 12675, 12677 (remarks of Sen. Allott); 7064 (remarks of Sen. Pell); 7057, 7062-7064 (remarks of Sen. Pastore); 5243 (remarks of Sen. Clark).[Footnote 23]See, e.g., id. at 6052 (remarks of Sen. Johnston); 5863 (remarks of Sen. Eastland); 5612 (remarks of Sen. Ervin); 5251 (remarks of Sen. Talmadge); 1632 (remarks of Rep. Dowdy); 1619 (remarks of Rep. Abernethy).[Footnote 24]See also id. at 7057, 13333 (remarks of Sen. Ribicoff); 7057 (remarks of Sen. Pastore); 5606-5607 (remarks of Sen. Javits); 5253, 5863-5864, 13442 (remarks of Sen. Humphrey).[Footnote 25]That issue has generated a considerable amount of scholarly controversy. See, e.g., Ely, The Constitutionality of Reverse Racial Discrimination, 41 U.Chi.L.Rev. 723 (1974); Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 Colum.L.Rev. 559 (1975); Kaplan, Equal Justice in an Unequal World: Equality for the Negro, 61 Nw.U.L.Rev. 363 (1966); Karst & Horowitz, Affirmative Action and Equal Protection, 60 Va.L.Rev. 955 (1974); O'Neil, Racial Preference and Higher Education: The Larger Context, 60 Va.L.Rev. 925 (1974); Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 Sup.Ct.Rev. 1; Redish, Preferential Law School Admissions and the Equal Protection Clause: An Analysis of the Competing Arguments, 22 UCLA L.Rev. 343 (1974); Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U.Chi.L.Rev. 653 (1975); Sedler, Racial Preference, Reality and the Constitution: Bakke v. Regents of the University of California, 17 Santa Clara L.Rev. 329 (1977); Seeburger, A Heuristic Argument Against Preferential Admissions, 39 U.Pitt.L.Rev. 285 (1977).[Footnote 26]Petitioner defines "quota" as a requirement which must be met, but can never be exceeded, regardless of the quality of the minority applicants. Petitioner declares that there is no "floor" under the total number of minority students admitted; completely unqualified students will not be admitted simply to meet a "quota." Neither is there a "ceiling," since an unlimited number could be admitted through the general admissions process. On this basis, the special admissions program does not meet petitioner's definition of a quota.The court below found -- and petitioner does not deny -- that white applicants could not compete for the 16 places reserved solely for the special admissions program. 18 Cal. 3d at 44, 553 P.2d at 1159. Both courts below characterized this as a "quota" system.[Footnote 27]Moreover, the University's special admissions program involves a purposeful, acknowledged use of racial criteria. This is not a situation in which the classification on its face is racially neutral, but has a disproportionate racial impact. In that situation, plaintiff must establish an intent to discriminate. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 429 U. S. 264-265 (1977); Washington v. Davis, 426 U. S. 229, 426 U. S. 242 (1976); see Yick Wo v. Hopkins, 118 U. S. 356 (1886).[Footnote 28]After Carolene Products, the first specific reference in our decisions to the elements of "discreteness and insularity" appears in Minersville School District v. Gobitis, 310 U. S. 586, 310 U. S. 606 (1940) (Stone, J., dissenting). The next does not appear until 1970. Oregon v. Mitchell, 400 U. S. 112, 400 U. S. 295 n. 14 (STEWART, J., concurring in part and dissenting in part). These elements have been relied upon in recognizing a suspect class in only one group of cases, those involving aliens. E.g., Graham v. Richardson, 403 U. S. 365, 403 U. S. 372 (1971).[Footnote 29]Tussman & tenBroek, The Equal Protection of the Law, 37 Calif.L.Rev. 341, 381 (1949).[Footnote 30]M. Jones, American Immigration 177-246 (1960).[Footnote 31]J. Higham, Strangers in the Land (1955); G. Abbott, The Immigrant and the Community (1917); P. Roberts, The New Immigration 66-73, 86-91, 248-261 (1912). See also E. Fenton, Immigrants and Unions: A Case Study 561-562 (1975).[Footnote 32]"Members of various religious and ethnic groups, primarily but not exclusively of Eastern, Middle, and Southern European ancestry, such as Jews, Catholics, Italians, Greeks, and Slavic groups, continue to be excluded from executive, middle-management, and other job levels because of discrimination based upon their religion and/or national origin."41 CFR § 60-50.1(b) (1977).[Footnote 33]E.g., P. Roberts, supra, n 31, at 75; G. Abbott, supra, n 31, at 270-271. See generally n 31, supra.[Footnote 34]In the view of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, the pliable notion of "stigma" is the crucial element in analyzing racial classifications, see, e.g., post at 438 U. S. 361, 438 U. S. 362. The Equal Protection Clause is not framed in terms of "stigma." Certainly the word has no clearly defined constitutional meaning. It reflects a subjective judgment that is standardless. All state-imposed classifications that rearrange burdens and benefits on the basis of race are likely to be viewed with deep resentment by the individuals burdened. The denial to innocent persons of equal rights and opportunities may outrage those so deprived, and therefore may be perceived as invidious. These individuals are likely to find little comfort in the notion that the deprivation they are asked to endure is merely the price of membership in the dominant majority, and that its imposition is inspired by the supposedly benign purpose of aiding others. One should not lightly dismiss the inherent unfairness of, and the perception of mistreatment that accompanies, a system of allocating benefits and privileges on the basis of skin color and ethnic origin. Moreover, MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN offer no principle for deciding whether preferential classifications reflect a benign remedial purpose or a malevolent stigmatic classification, since they are willing in this case to accept mere post hoc declarations by an isolated state entity -- a medical school faculty -- unadorned by particularized findings of past discrimination, to establish such a remedial purpose.[Footnote 35]Professor Bickel noted the self-contradiction of that view:"The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation -- discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society. Now this is to be unlearned, and we are told that this is not a matter of fundamental principle, but only a matter of whose ox is gored. Those for whom racial equality was demanded are to be more equal than others. Having found support in the Constitution for equality, they now claim support for inequality under the same Constitution."A. Bickel, The Morality of Consent 133 (1975).[Footnote 36]As I am in agreement with the view that race may be taken into account as a factor in an admissions program, I agree with my Brothers BRENNAN, WHITE, MARSHALL, and BLACKMUN that the portion of the judgment that would proscribe all consideration of race must be reversed. See 438 U. S. infra. But I disagree with much that is said in their opinion.They would require, as a justification for a program such as petitioner's, only two findings: (i) that there has been some form of discrimination against the preferred minority groups by "society at large," post at 438 U. S. 369 (it being conceded that petitioner had no history of discrimination), and (ii) that "there is reason to believe" that the disparate impact sought to be rectified by the program is the "product" of such discrimination:"If it was reasonable to conclude -- as we hold that it was -- that the failure of minorities to qualify for admission at Davis under regular procedures was due principally to the effects of past discrimination, then there is a reasonable likelihood that, but for pervasive racial discrimination, respondent would have failed to qualify for admission even in the absence of Davis' special admissions program."Post at 438 U. S. 365-366.The breadth of this hypothesis is unprecedented in our constitutional system. The first step is easily taken. No one denies the regrettable fact that there has been societal discrimination in this country against various racial and ethnic groups. The second step, however, involves a speculative leap: but for this discrimination by society at large, Bakke "would have failed to qualify for admission" because Negro applicants -- nothing is said about Asians, cf., e.g., post at 438 U. S. 374 n. 57 -- would have made better scores. Not one word in the record supports this conclusion, and the authors of the opinion offer no standard for courts to use in applying such a presumption of causation to other racial or ethnic classifications. This failure is a grave one, since, if it may be concluded on this record that each of the minority groups preferred by the petitioner's special program is entitled to the benefit of the presumption, it would seem difficult to determine that any of the dozens of minority groups that have suffered "societal discrimination" cannot also claim it in any area of social intercourse. See 438 U. S. infra.[Footnote 37]Mr. Justice Douglas has noted the problems associated with such inquiries:"The reservation of a proportion of the law school class for members of selected minority groups is fraught with . . . dangers, for one must immediately determine which groups are to receive such favored treatment and which are to be excluded, the proportions of the class that are to be allocated to each, and even the criteria by which to determine whether an individual is a member of a favored group. [Cf. Plessy v. Ferguson, 163 U. S. 537, 163 U. S. 549, 163 U. S. 552 (1896).] There is no assurance that a common agreement can be reached, and first the schools, and then the courts, will be buffeted with the competing claims. The University of Washington included Filipinos, but excluded Chinese and Japanese; another school may limit its program to blacks, or to blacks and Chicanos. Once the Court sanctioned racial preferences such as these, it could not then wash its hands of the matter, leaving it entirely in the discretion of the school, for then we would have effectively overruled Sweatt v. Painter, 339 U. S. 629, and allowed imposition of a 'zero' allocation. But what standard is the Court to apply when a rejected applicant of Japanese ancestry brings suit to require the University of Washington to extend the same privileges to his group? The Committee might conclude that the population of Washington is now 2% Japanese, and that Japanese also constitute 2% of the Bar, but that, had they not been handicapped by a history of discrimination, Japanese would now constitute 5% of the Bar, or 20%. Or, alternatively, the Court could attempt to assess how grievously each group has suffered from discrimination, and allocate proportions accordingly; if that were the standard, the current University of Washington policy would almost surely fall, for there is no Western State which can claim that it has always treated Japanese and Chinese in a fair and evenhanded manner. See, e.g., Yick Wo v. Hopkins, 118 U. S. 356; Terrace v. Thompson, 263 U. S. 197; Oyama v. California, 332 U. S. 633. This Court has not sustained a racial classification since the wartime cases of Korematsu v. United States, 323 U. S. 214, and Hirabayashi v. United States, 320 U. S. 81, involving curfews and relocations imposed upon Japanese-Americans.""Nor, obviously, will the problem be solved if, next year, the Law School included only Japanese and Chinese, for then Norwegians and Swedes, Poles and Italians, Puerto Ricans and Hungarians, and all other groups which form this diverse Nation would have just complaints."DeFunis v. Odegaard, 416 U. S. 312, 416 U. S. 337-340 (1974) (dissenting opinion) (footnotes omitted) .[Footnote 38]R. Dahl, A Preface to Democratic Theory (1956); Posner, supra, n 25, at 27.[Footnote 39]Petitioner cites three lower court decisions allegedly deviating from this general rule in school desegregation cases: Offermann v. Nitkowski, 378 F.2d 22 (CA2 1967); Wanner v. County School Board, 357 F.2d 452 (CA4 1966); Springfield School Committee v. Barksdale, 348 F.2d 261 (CA1 1965). Of these, Wanner involved a school system held to have been de jure segregated and enjoined from maintaining segregation; racial districting was deemed necessary. 357 F.2d at 454. Cf. United Jewish Organizations v. Carey, 430 U. S. 144 (1977). In Barksdale and Offermann, courts did approve voluntary districting designed to eliminate discriminatory attendance patterns. In neither, however, was there any showing that the school board planned extensive pupil transportation that might threaten liberty or privacy interests. See Keyes v. School District No. 1, 413 U. S. 189, 413 U.S. 240-250 (1973) (POWELL, J., concurring in part and dissenting in part). Nor were white students deprived of an equal opportunity for education.Respondent's position is wholly dissimilar to that of a pupil bused from his neighborhood school to a comparable school in another neighborhood in compliance with a desegregation decree. Petitioner did not arrange for respondent to attend a different medical school in order to desegregate Davis Medical School; instead, it denied him admission, and may have deprived him altogether of a medical education.[Footnote 40]Every decision upholding the requirement of preferential hiring under the authority of Exec.Order No. 11246, 3 CFR 339 (1964-1965 Comp.), has emphasized the existence of previous discrimination as a predicate for the imposition of a preferential remedy. Contractors Association of Eastern Pennsylvania; Southern Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (CA7 1972); Joyce v. McCrane, 320 F. Supp. 1284 (NJ 1970); Weiner v. Cuyahoga Community College District, 19 Ohio St.2d 35, 249 N.E.2d 907, cert. denied, 396 U.S. 1004 (1970). See also Rosetti Contracting Co. v. Brennan, 508 F.2d 1039, 1041 (CA7 1975); Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (CA1 1973), cert. denied, 416 U.S. 957 (1974); Northeast Constr. Co. v. Romney, 157 U.S.App.D.C. 381, 383, 390, 485 F.2d 752, 754, 761 (1973).[Footnote 41]This case does not call into question congressionally authorized administrative actions, such as consent decrees under Title VII or approval of reapportionment plans under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970 ed., Supp. V). In such cases, there has been detailed legislative consideration of the various indicia of previous constitutional or statutory violations, e.g., South Carolina v. Katzenbach, 383 U. S. 301, 383 U. S. 308-310 (1966) (§ 5), and particular administrative bodies have been charged with monitoring various activities in order to detect such violations and formulate appropriate remedies. See Hampton v. Mow Sun Wong, 426 U. S. 88, 426 U. S. 103 (1976).Furthermore, we are not here presented with an occasion to review legislation by Congress pursuant to its powers under § 2 of the Thirteenth Amendment and § 5 of the Fourteenth Amendment to remedy the effects of prior discrimination. Katzenbach v. Morgan, 384 U. S. 641 (1966); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). We have previously recognized the special competence of Congress to make findings with respect to the effects of identified past discrimination and its discretionary authority to take appropriate remedial measures.[Footnote 42]Petitioner also cites our decision in Morton v. Mancari, 417 U. S. 535 (1974), for the proposition that the State may prefer members of traditionally disadvantaged groups. In Mancari, we approved a hiring preference for qualified Indians in the Bureau of Indian Affairs of the Department of the Interior (BIA). We observed in that case, however, that the legal status of the BIA is sui generis. Id. at 417 U. S. 554. Indeed, we found that the preference was not racial at all, but"an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to . . . groups . . . whose lives and activities are governed by the BIA in a unique fashion."Ibid.[Footnote 43]A number of distinct subgoals have been advanced as falling under the rubric of "compensation for past discrimination." For example, it is said t.hat preferences for Negro applicants may compensate for harm done them personally, or serve to place them at economic levels they might have attained but for discrimination against their forebears. Greenawalt, supra, n 25, at 581-586. Another view of the "compensation" goal is that it serves as a form of reparation by the "majority" to a victimized group as a whole. B. Bittker, The Case for Black Reparations (1973). That justification for racial or ethnic preference has been subjected to much criticism. E. Greenawalt, supra, n 25, at 581; Posner, supra, n 25, at 16-17, and n. 33. Finally, it has been argued that ethnic preferences "compensate" the group by providing examples of success whom other members of the group will emulate, thereby advancing the group's interest and society's interest in encouraging new generations to overcome the barriers and frustrations of the past. Redish, supra, n 25, at 391. For purposes of analysis these subgoals need not be considered separately.Racial classifications in admissions conceivably could serve a fifth purpose, one which petitioner does not articulate: fair appraisal of each individual's academic promise in the light of some cultural bias in grading or testing procedures. To the extent that race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that there is no "preference" at all. Nothing in this record, however, suggests either that any of the quantitative factors considered by the Medical School were culturally biased, or that petitioner's special admissions program was formulated to correct for any such biases. Furthermore, if race or ethnic background were used solely to arrive at an unbiased prediction of academic success, the reservation of fixed numbers of seats would be inexplicable.[Footnote 44]MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN misconceive the scope of this Court's holdings under Title VII when they suggest that "disparate impact" alone is sufficient to establish a violation of that statute and, by analogy, other civil rights measures. See post at 438 U. S. 363-366, and n. 42. That this was not the meaning of Title VII was made quite clear in the seminal decision in this area, Griggs v. Duke Power Co., 401 U. S. 424 (1971):"Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification."Id. at 401 U. S. 431 (emphasis added). Thus, disparate impact is a basis for relief under Title VII only if the practice in question is not founded on "business necessity," ibid., or lacks "a manifest relationship to the employment in question," id. at 401 U. S. 432. See also McDonnell Douglas Corp. v. Green, 411 U. S. 792, 411 U. S. 802-803, 411 U. S. 805-806 (1973). Nothing in this record -- as opposed to some of the general literature cited by MR. JUSTICE BRENNAN, MR JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN -- even remotely suggests that the disparate impact of the general admissions program at Davis Medical School, resulting primarily from the sort of disparate test scores and grades set forth in n 7, supra, is without educational justification.Moreover, the presumption in Griggs -- that disparate impact without any showing of business justification established the existence of discrimination in violation of the statute -- was based on legislative determinations, wholly absent here, that past discrimination had handicapped various minority groups to such an extent that disparate impact could be traced to identifiable instances of past discrimination:"[Congress sought] to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices."Griggs, supra at 401 U. S. 429-430. See, e.g., H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 26 (1963) ("Testimony supporting the fact of discrimination in employment is overwhelming"). See generally Vaas, Title VII: The Legislative History, 7 B. C. Ind. & Com.L.Rev. 431 (1966). The Court emphasized that"the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group."401 U.S. at 401 U. S. 430-431. Indeed, § 703(j) of the Act makes it clear that preferential treatment for an individual or minority group to correct an existing "imbalance" may not be required under Title VII. 42 U.S.C. § 2000e-2(j). Thus, Title VII principles support the proposition that findings of identified discrimination must precede the fashioning of remedial measures embodying racial classifications.[Footnote 45]For example, the University is unable to explain its selection of only the four favored groups -- Negroes, Mexican-Americans, American Indians, and Asians -- for preferential treatment. The inclusion of the last group is especially curious in light of the substantial numbers of Asians admitted through the regular admissions process. See also n 37, supra.[Footnote 46]The only evidence in the record with respect to such underservice is a newspaper article. Record 473.[Footnote 47]It is not clear that petitioner's two-track system, even if adopted throughout the country, would substantially increase representation of blacks in the medical profession. That is the finding of a recent study by Sleeth & Mishell, Black Under-Representation in United States Medical Schools, 297 New England J. of Med. 1146 (1977). Those authors maintain that the cause of black underrepresentation lies in the small size of the national pool of qualified black applicants. In their view, this problem is traceable to the poor premedical experiences of black undergraduates, and can be remedied effectively only by developing remedial programs for black students before they enter college.[Footnote 48]The president of Princeton University has described some of the benefits derived from a diverse student body:"[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours observed in commenting on this aspect of the educational process, 'People do not learn very much when they are surrounded only by the likes of themselves.'""* * * *" "In the nature of things, it is hard to know how, and when, and even if, this informal 'learning through diversity' actually occurs. It does not occur for everyone. For many, however, the unplanned, casual encounters with roommates, fellow sufferers in an organic chemistry class, student workers in the library, teammates on a basketball squad, or other participants in class affairs or student government can be subtle and yet powerful sources of improved understanding and personal growth."Bowen, Admissions and the Relevance of Race, Princeton Alumni Weekly 7, 9 (Sept. 26, 1977).[Footnote 49]Graduate admissions decisions, like those at the undergraduate level, are concerned with"assessing the potential contributions to the society of each individual candidate following his or her graduation -- contributions defined in the broadest way to include the doctor and the poet, the most active participant in business or government affairs and the keenest critic of all things organized, the solitary scholar and the concerned parent."Id. at 10.[Footnote 50]See Manning, The Pursuit of Fairness in Admissions to Higher Education, in Carnegie Council on Policy Studies in Higher Education, Selective Admission in Higher Education 19, 57-59 (1977).[Footnote 51]The admissions program at Princeton has been described in similar terms:"While race is not, in and of itself, a consideration in determining basic qualifications, and while there are obviously significant differences in background and experience among applicants of every race, in some situations, race can be helpful information in enabling the admission officer to understand more fully what a particular candidate has accomplished -- and against what odds. Similarly, such factors as family circumstances and previous educational opportunities may be relevant, either in conjunction with race or ethnic background (with which they may be associated) or on their own."Bowen, supra, n 48, at 8-9.For an illuminating discussion of such flexible admissions systems, see Manning, supra, n 50, at 57-59.[Footnote 52]The denial to respondent of this right to individualized consideration without regard to his race is the principal evil of petitioner' special admissions program. Nowhere in the opinion of MR. JUSTICE BRENNAN, MR JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR JUSTICE BLACKMUN is this denial even addressed.[Footnote 53]Universities, like the prosecutor in Swain, may make individualized decisions, in which ethnic background plays a part, under a presumption of legality and legitimate educational purpose. So long as the university proceeds on an individualized, case-by-case basis, there is no warrant for judicial interference in the academic process. If an applicant can establish that the institution does not adhere to a policy of individual comparisons, or can show that a systematic exclusion of certain groups results, the presumption of legality might be overcome, creating the necessity of proving legitimate educational purpose.There also are strong policy reasons that correspond to the constitutional distinction between petitioner's preference program and one that assures a measure of competition among all applicants. Petitioner's program will be viewed as inherently unfair by the public generally, as well as by applicants for admission to state universities. Fairness in individual competition for opportunities, especially those provided by the State, is a widely cherished American ethic. Indeed, in a broader sense, an underlying assumption of the rule of law is the worthiness of a system of justice based on fairness to the individual. As Mr. Justice Frankfurter declared in another connection, "[j]ustice must satisfy the appearance of justice." Offutt v. United States, 348 U. S. 11, 348 U. S. 14 (1954).[Footnote 54]There is no occasion for remanding the case to permit petitioner to reconstruct what might have happened if it had been operating the type of program described as legitimate in 438 U. S. supra. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274, 429 U. S. 284-287 (1977). In Mt. Healthy, there was considerable doubt whether protected First Amendment activity had been the "but for" cause of Doyle's protested discharge. Here, in contrast, there is no question as to the sole reason for respondent's rejection -- purposeful racial discrimination in the form of the special admissions program. Having injured respondent solely on the basis of an unlawful classification, petitioner cannot now hypothesize that it might have employed lawful means of achieving the same result. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. at 429 U. S. 265-266. No one can say how -- or even if -- petitioner would have operated its admissions process if it had known that legitimate alternatives were available. Nor is there a record revealing that legitimate alternative grounds for the decision existed, as there was in Mt. Healthy. In sum, a remand would result in fictitious recasting of past conduct.[Footnote 55]This statement appears in the Appendix to the Brief for Columbia University, Harvard University, Stanford University, and the University of Pennsylvania, as Amici Curiae.Opinion of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR, JUSTICE BLACKMUN, concurring in the judgment in part and dissenting in part.The Court today, in reversing in part the judgment of the Supreme Court of California, affirms the constitutional power of Federal and State Governments to act affirmatively to achieve equal opportunity for all. The difficulty of the issue presented -- whether government may use race-conscious programs to redress the continuing effects of past discrimination -- Page 438 U. S. 325 and the mature consideration which each of our Brethren has brought to it have resulted in many opinions, no single one speaking for the Court. But this should not and must not mask the central meaning of today's opinions: Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area.THE CHIEF JUSTICE and our Brothers STEWART, REHNQUIST, and STEVENS, have concluded that Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S.C. § 2000d et seq., prohibits programs such as that at the Davis Medical School. On this statutory theory alone, they would hold that respondent Allan Bakke's rights have been violated, and that he must, therefore, be admitted to the Medical School. Our Brother POWELL, reaching the Constitution, concludes that, although race may be taken into account in university admissions, the particular special admissions program used by petitioner, which resulted in the exclusion of respondent Bakke, was not shown to be necessary to achieve petitioner's stated goals. Accordingly, these Members of the Court form a majority of five affirming the judgment of the Supreme Court of California insofar as it holds that respondent Bakke "is entitled to an order that he be admitted to the University." 18 Cal. 3d 34, 64, 553 P.2d 1152, 1172 (1976).We agree with MR. JUSTICE POWELL that, as applied to the case before us, Title VI goes no further in prohibiting the use of race than the Equal Protection Clause of the Fourteenth Amendment itself. We also agree that the effect of the California Supreme Court's affirmance of the judgment of the Superior Court of California would be to prohibit the University from establishing in the future affirmative action programs that take race into account. See ante at 438 U. S. 271 n. Since we conclude that the affirmative admissions program at the Davis Page 438 U. S. 326 Medical School is constitutional, we would reverse the judgment below in all respects. MR. JUSTICE POWELL agrees that some uses of race in university admissions are permissible and, therefore, he joins with us to make five votes reversing the judgment below insofar as it prohibits the University from establishing race-conscious programs in the future. [Footnote 2/1]IOur Nation was founded on the principle that "all Men are created equal." Yet candor requires acknowledgment that the Framers of our Constitution, to forge the 13 Colonies into one Nation, openly compromised this principle of equality with its antithesis: slavery. The consequences of this compromise are well known, and have aptly been called our "American Dilemma." Still, it is well to recount how recent the time has ben, if it has yet come, when the promise of our principles has flowered into the actuality of equal opportunity for all regardless of race or color.The Fourteenth Amendment, the embodiment in the Constitution of our abiding belief in human equality, has been the law of our land for only slightly more than half its 200 years. And for half of that half, the Equal Protection Clause of the Amendment was largely moribund, so that, as late as 1927, Mr. Justice Holmes could sum up the importance of that Clause by remarking that it was the "last resort of constitutional arguments." Buck v. Bell, 274 U. S. 200, 274 U. S. 208 (1927). Worse than desuetude, the Clause was early turned against those whom it was intended to set free, condemning them to a "separate but equal" [Footnote 2/2] status before the law, a status Page 438 U. S. 327 always separate but seldom equal. Not until 1954 -- only 24 years ago -- was this odious doctrine interred by our decision in Brown v. Board of Education, 347 U. S. 483 (Brown I), and its progeny, [Footnote 2/3] which proclaimed that separate schools and public facilities of all sorts were inherently unequal and forbidden under our Constitution. Even then, inequality was not eliminated with "all deliberate speed." Brown v. Board of Education, 349 U. S. 294, 349 U. S. 301 (1955). In 1968 [Footnote 2/4] and again in 1971, [Footnote 2/5] for example, we were forced to remind school boards of their obligation to eliminate racial discrimination root and branch. And a glance at our docket [Footnote 2/6] and at dockets of lower courts will show that, even today, officially sanctioned discrimination is not a thing of the past.Against this background, claims that law must be "colorblind" or that the datum of race is no longer relevant to public policy must be seen as aspiration, rather than as description of reality. This is not to denigrate aspiration; for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. Yet we cannot -- and, as we shall demonstrate, need not under our Constitution or Title VI, which merely extends the constraints of the Fourteenth Amendment to private parties who receive federal funds -- let color blindness become myopia which masks the reality that many "created equal" have been treated within our lifetimes as inferior both by the law and by their fellow citizens. Page 438 U. S. 328IIThe threshold question we must decide is whether Title VI of the Civil Rights Act of 1964 bars recipients of federal funds from giving preferential consideration to disadvantaged members of racial minorities as part of a program designed to enable such individuals to surmount the obstacles imposed by racial discrimination. [Footnote 2/7] We join Parts I and V-C of our Brother POWELL's opinion, and three of us agree with his conclusion in Part II that this case does not require us to resolve the question whether there is a private right of action under Title VI. [Footnote 2/8]In our view, Title VI prohibits only those uses of racial criteria that would violate the Fourteenth Amendment if employed by a State or its agencies; it does not bar the preferential treatment of racial minorities as a means of remedying past societal discrimination to the extent that such action is consistent with the Fourteenth Amendment. The legislative history of Title VI, administrative regulations interpreting the statute, subsequent congressional and executive action, and the prior decisions of this Court compel this conclusion. None of these sources lends support to the proposition that Congress intended to bar all race-conscious efforts to extend the benefits of federally financed programs to minorities who have been historically excluded from the full benefits of American life.AThe history of Title VI -- from President Kennedy's request that Congress grant executive departments and agencies authority Page 438 U. S. 329 to cut off federal funds to programs that discriminate against Negroes through final enactment of legislation incorporating his proposals -- reveals one fixed purpose: to give the Executive Branch of Government clear authority to terminate federal funding of private programs that use race as a means of disadvantaging minorities in a manner that would be prohibited by the Constitution if engaged in by government.This purpose was first expressed in President Kennedy's June 19, 1963, message to Congress proposing the legislation that subsequently became the Civil Rights Act of 1964. [Footnote 2/9] Page 438 U. S. 330 Representative Celler, the Chairman of the House Judiciary Committee, and the floor manager of the legislation in the House, introduced Title VI in words unequivocally expressing the intent to provide the Federal Government with the means of assuring that its funds were not used to subsidize racial discrimination inconsistent with the standards imposed by the Fourteenth and Fifth Amendments upon state and federal action."The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only white students in programs of high[er] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association."110 Cong.Rec. 1519 (1964). It was clear to Representative Celler that Title VI, apart from the fact that it reached all federally funded activities even in the absence of sufficient state or federal control to invoke the Fourteenth or Fifth Amendments, was not placing new substantive limitations upon the use of racial criteria, but rather was designed to extend to such activities "the existing right to equal treatment" enjoyed by Negroes under those Amendments, and he later specifically defined the purpose of Title VI in this way:"In general, it seems rather anomalous that the Federal Government should aid and abet discrimination on the basis of race, color, or national origin by granting money Page 438 U. S. 331 and other kinds of financial aid. It seems rather shocking, moreover, that, while we have on the one hand the 14th Amendment, which is supposed to do away with discrimination, since it provides for equal protection of the laws, on the other hand, we have the Federal Government aiding and abetting those who persist in practicing racial discrimination.""It is for these reasons that we bring forth title VI. The enactment of title VI will serve to override specific provisions of law which contemplate Federal assistance to racially segregated institutions."Id. at 2467. Representative Celler also filed a memorandum setting forth the legal basis for the enactment of Title VI which reiterated the theme of his oral remarks:"In exercising its authority to fix the terms on which Federal funds will be disbursed . . . . Congress clearly has power to legislate so as to insure that the Federal Government does not become involved in a violation of the Constitution."Id. at 1528.Other sponsors of the legislation agreed with Representative Celler that the function of Title VI was to end the Federal Government's complicity in conduct, particularly the segregation or exclusion of Negroes, inconsistent with the standards to be found in the antidiscrimination provisions of the Constitution. Representative Lindsay, also a member of the Judiciary Committee, candidly acknowledged, in the course of explaining why Title VI was necessary, that it did not create any new standard of equal treatment beyond that contained in the Constitution:"Both the Federal Government and the States are under constitutional mandates not to discriminate. Many have raised the question as to whether legislation is required at all. Does not the Executive already have the power in the distribution of Federal funds to apply those conditions which will enable the Federal Government itself to live up to the mandate of the Constitution and to require Page 438 U. S. 332 States and local government entities to live up to the Constitution, most especially the 5th and 14th amendments?"Id. at 2467. He then explained that legislation was needed to authorize the termination of funding by the Executive Branch because existing legislation seemed to contemplate the expenditure of funds to support racially segregated institutions. Ibid. The views of Representatives Celler and Lindsay concerning the purpose and function of Title VI were shared by other sponsors and proponents of the legislation in the House. [Footnote 2/10] Nowhere is there any suggestion that Title VI was intended to terminate federal funding for any reason other than consideration of race or national origin by the recipient institution in a manner inconsistent with the standards incorporated in the Constitution.The Senate's consideration of Title VI reveals an identical understanding concerning the purpose and scope of the legislation. Senator Humphrey, the Senate floor manager, opened the Senate debate with a section-by-section analysis of the Civil Rights Act in which he succinctly stated the purpose of Title VI:"The purpose of title VI is to make sure that funds of the United States are not used to support racial discrimination. In many instances, the practices of segregation or discrimination, which title VI seeks to end, are unconstitutional. This is clearly so wherever Federal funds go to a State agency which engages in racial discrimination. It may also be so where Federal funds go to support private, segregated institutions, under the decision in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (C.A. 4, 1963), [cert. denied, 376 U.S. 938 (1964)]. In all cases, such discrimination is contrary to national policy, and to the moral sense of the Nation. Thus, title VI is simply Page 438 U. S. 333 designed to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation."Id. at 6544. Senator Humphrey, in words echoing statements in the House, explained that legislation was needed to accomplish this objective because it was necessary to eliminate uncertainty concerning the power of federal agencies to terminate financial assistance to programs engaging in racial discrimination in the face of various federal statutes which appeared to authorize grants to racially segregated institutions. Ibid. Although Senator Humphrey realized that Title VI reached conduct which, because of insufficient governmental action, might be beyond the reach of the Constitution, it was clear to him that the substantive standard imposed by the statute was that of the Fifth and Fourteenth Amendments. Senate supporters of Title VI repeatedly expressed agreement with Senator Humphrey's description of the legislation as providing the explicit authority and obligation to apply the standards of the Constitution to all recipients of federal funds. Senator Ribicoff described the limited function of Title VI:"Basically, there is a constitutional restriction against discrimination in the use of Federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction."Id. at 13333. Other strong proponents of the legislation in the Senate repeatedly expressed their intent to assure that federal funds would only be spent in accordance with constitutional standards. See remarks of Senator Pastore, id. at 7057, 7062; Senator Clark, id. at 5243; Senator Allott, id. at 12675, 12677. [Footnote 2/11] Page 438 U. S. 334Respondent's contention that Congress intended Title VI to bar affirmative action programs designed to enable minorities disadvantaged by the effects of discrimination to participate in federally financed programs is also refuted by an examination of the type of conduct which Congress thought it was prohibiting by means of Title VI. The debates reveal that the legislation was motivated primarily by a desire to eradicate a very specific evil: federal financial support of programs which disadvantaged Negroes by excluding them from participation or providing them with separate facilities. Again and again supporters of Title VI emphasized that the purpose of the statute was to end segregation in federally funded activities and to end other discriminatory uses of race disadvantaging Negroes. Senator Humphrey set the theme in his speech presenting Title VI to the Senate:"Large sums of money are contributed by the United States each year for the construction, operation, and maintenance of segregated schools.""* * * *" "Similarly, under the Hill-Burton Act, Federal grants are made to hospitals which admit whites only or Negroes only. . . .""In higher education also, a substantial part of the Federal grants to colleges, medical schools and so forth, in the South is still going to segregated institutions. "Page 438 U. S. 335"Nor is this all. In several States, agricultural extension services, supported by Federal funds, maintain racially segregated offices for Negroes and whites. . . ."". . . Vocational training courses, supported with Federal funds, are given in segregated schools and institutions and often limit Negroes to training in less skilled occupations. In particular localities it is reported that Negroes have been cut off from relief rolls, or denied surplus agricultural commodities, or otherwise deprived of the benefit of federally assisted programs, in retaliation for their participation in voter registration drives, sit-in demonstrations and the like."Id. at 6543-6544. See also the remarks of Senator Pastore (id. at 7054-7055); Senator Ribicoff (id. at 7064-7065); Senator Clark (id. at 5243, 9086); Senator Javits (id. at 6050, 7102). [Footnote 2/12]The conclusion to be drawn from the foregoing is clear. Congress recognized that Negroes, in some cases with congressional acquiescence, were being discriminated against in the administration of programs and denied the full benefits of activities receiving federal financial support. It was aware that there were many federally funded programs and institutions which discriminated against minorities in a manner inconsistent with the standards of the Fifth and Fourteenth Amendments, but whose activities might not involve sufficient state or federal action so as to be in violation of these Amendments. Moreover, Congress believed that it was questionable whether the Executive Branch possessed legal authority to terminate the funding of activities on the ground that they discriminated racially against Negroes in a manner violative of the standards contained in the Fourteenth and Fifth Page 438 U. S. 336 Amendments. Congress' solution was to end the Government's complicity in constitutionally forbidden racial discrimination by providing the Executive Branch with the authority and the obligation to terminate its financial support of any activity which employed racial criteria in a manner condemned by the Constitution.Of course, it might be argued that the Congress which enacted Title VI understood the Constitution to require strict racial neutrality or color blindness, and then enshrined that concept as a rule of statutory law. Later interpretation and clarification of the Constitution to permit remedial use of race would then not dislodge Title VI's prohibition of race-conscious action. But there are three compelling reasons to reject such a hypothesis.First, no decision of this Court has ever adopted the proposition that the Constitution must be colorblind. See infra at 438 U. S. 355-356.Second, even if it could be argued in 1964 that the Constitution might conceivably require color blindness, Congress surely would not have chosen to codify such a view unless the Constitution clearly required it. The legislative history of Title VI, as well as the statute itself, reveals a desire to induce voluntary compliance with the requirement of nondiscriminatory treatment. [Footnote 2/13] See § 602 of the Act, 42 U.S.C. § 2000d-1 (no funds shall be terminated unless and until it has been "determined that compliance cannot be secured by voluntary means"); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 25 (1963); 110 Cong Rec. 13700 (1964) (Sen. Pastore); id. at 6546 (Sen. Humphrey). It is inconceivable that Congress intended to encourage voluntary efforts to eliminate the evil of racial discrimination while at the same time forbidding the voluntary use of race-conscious remedies to cure acknowledged or obvious statutory violations. Yet a reading of Title VI as prohibiting all action predicated upon race which adversely Page 438 U. S. 337 affects any individual would require recipients guilty of discrimination to await the imposition of such remedies by the Executive Branch. Indeed, such an interpretation of Title VI would prevent recipients of federal funds from taking race into account even when necessary to bring their programs into compliance with federal constitutional requirements. This would be a remarkable reading of a statute designed to eliminate constitutional violations, especially in light of judicial decisions holding that, under certain circumstances, the remedial use of racial criteria is not only permissible, but is constitutionally required to eradicate constitutional violations. For example, in Board of Education v. Swann, 402 U. S. 43 (1971), the Court held that a statute forbidding the assignment of students on the basis of race was unconstitutional because it would hinder the implementation of remedies necessary to accomplish the desegregation of a school system:"Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy."Id. at 402 U. S. 46. Surely Congress did not intend to prohibit the use of racial criteria when constitutionally required or to terminate the funding of any entity which implemented such a remedy. It clearly desired to encourage all remedies, including the use of race, necessary to eliminate racial discrimination in violation of the Constitution, rather than requiring the recipient to await a judicial adjudication of unconstitutionality and the judicial imposition of a racially oriented remedy.Third, the legislative history shows that Congress specifically eschewed any static definition of discrimination in favor of broad language that could be shaped by experience, administrative necessity, and evolving judicial doctrine. Although it is clear from the debates that the supporters of Title VI intended to ban uses of race prohibited by the Constitution and, more specifically, the maintenance of segregated Page 438 U. S. 338 facilities, they never precisely defined the term "discrimination," or what constituted an exclusion from participation or a denial of benefits on the ground of race. This failure was not lost upon its opponents. Senator Ervin complained:"The word 'discrimination,' as used in this reference, has no contextual explanation whatever, other than the provision that the discrimination 'is to be against' individuals participating in or benefiting from federally assisted programs and activities on the ground specified. With this context, the discrimination condemned by this reference occurs only when an individual is treated unequally or unfairly because of his race, color, religion, or national origin. What constitutes unequal or unfair treatment? Section 601 and section 602 of title VI do not say. They leave the determination of that question to the executive department or agencies administering each program, without any guideline whatever to point out what is the congressional intent."110 Cong.Rec. 5612 (1964). See also remarks of Representative Abernethy (id. at 1619); Representative Dowdy (id. at 1632); Senator Talmadge (id. at 5251); Senator Sparkman (id. at 6052). Despite these criticisms, the legislation's supporters refused to include in the statute or even provide in debate a more explicit definition of what Title VI prohibited.The explanation for this failure is clear. Specific definitions were undesirable, in the views of the legislation's principal backers, because Title VI's standard was that of the Constitution, and one that could and should be administratively and judicially applied. See remarks of Senator Humphrey (id. at 5253, 6553); Senator Ribicoff (id. at 7057, 13333); Senator Pastore (id. at 7057); Senator Javits (id. at 5606-5607, 6050). [Footnote 2/14] Indeed, there was a strong emphasis throughout Page 438 U. S. 339 Congress' consideration of Title VI on providing the Executive Branch with considerable flexibility in interpreting and applying the prohibition against racial discrimination. Attorney General Robert Kennedy testified that regulations had not been written into the legislation itself because the rules and regulations defining discrimination might differ from one program to another, so that the term would assume different meanings in different contexts. [Footnote 2/15] This determination to preserve flexibility in the administration of Title VI was shared by the legislation's supporters. When Senator Johnston offered an amendment that would have expressly authorized federal grantees to take race into account in placing children in adoptive and foster homes, Senator Pastore opposed the amendment, which was ultimately defeated by a 56-29 vote, on the ground that federal administrators could be trusted to act reasonably, and that there was no danger that they would prohibit the use of racial criteria under such circumstances. Id. at 13695.Congress' resolve not to incorporate a static definition of discrimination into Title VI is not surprising. In 1963 and 1964, when Title VI was drafted and debated, the courts had only recently applied the Equal Protection Clause to strike down public racial discrimination in America, and the scope of that Clause's nondiscrimination principle was in a state of flux and rapid evolution. Many questions, such as whether the Fourteenth Amendment barred only de jure discrimination or, in at least some circumstances, reached de facto discrimination, had not yet received an authoritative judicial resolution. The congressional debate reflects an awareness of the evolutionary Page 438 U. S. 340 change that constitutional law in the area of racial discrimination was undergoing in 1964. [Footnote 2/16]In sum, Congress' equating of Title VI's prohibition with the commands of the Fifth and Fourteenth Amendments, its refusal precisely to define that racial discrimination which it intended to prohibit, and its expectation that the statute would be administered in a flexible manner, compel the conclusion that Congress intended the meaning of the statute's prohibition to evolve with the interpretation of the commands of the Constitution. Thus, any claim that the use of racial criteria is barred by the plain language of the statute must fail in light of the remedial purpose of Title VI and its legislative history. The cryptic nature of the language employed in Title VI merely reflects Congress' concern with the then-prevalent use of racial standards as a means of excluding or disadvantaging Negroes and its determination to prohibit absolutely such discrimination. We have recently held that,""[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law' which forbids its use, however clear the words may appear on `superficial examination.'"" Train v. Colorado Public Interest Research Group, 426 U. S. 1, 426 U. S. 10 (1976), quoting United States v. American Trucking Assns., 310 U. S. 534, 310 U. S. 544-544 (1940). This is especially so when, as is the case here, the literal application of what is believed to be the plain language of the statute, assuming that it is so plain, would lead to results in direct conflict with Congress' unequivocally expressed legislative purpose. [Footnote 2/17] Page 438 U. S. 341BSection 602 of Title VI, 42 U.S.C. § 2000d-1, instructs federal agencies to promulgate regulations interpreting Title Page 438 U. S. 342 VI. These regulations, which, under the terms of the statute, require Presidential approval, are entitled to considerable deference in construing Title VI. See, e.g., 414 U. S. Nichols, Page 438 U. S. 343 414 U. S. 563 (1974); Mourning v. Family Publications Service, Inc., 411 U. S. 356, 411 U. S. 369 (1973); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 381 (1969). Consequently, it is most significant that the Department of Health, Education, and Welfare (HEW), which provides much of the federal assistance to institutions of higher education, has adopted regulations requiring affirmative measures designed to enable racial minorities which have been previously discriminated against by a federally funded institution or program to overcome the effects of such actions and authorizing the voluntary undertaking of affirmative action programs by federally funded institutions that have not been guilty of prior discrimination in order to overcome the effects of conditions which have adversely affected the degree of participation by persons of a particular race.Title 45 FR § 80.3(b)(6)(i) (1977) provides:"In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination."Title 45 CFR § 80.5(i) (1977) elaborates upon this requirement:"In some situations, even though past discriminatory practices attributable to a recipient or applicant have been abandoned, the consequences of such practices continue to impede the full availability of a benefit. If the efforts required of the applicant or recipient under § 80.6(d), to provide information as to the availability of the program or activity and the rights of beneficiaries under this regulation, have failed to overcome these consequences, it will become necessary under the requirement stated in (i) of § 80.3(b)(6) for such applicant or recipient to take additional steps to make the benefits Page 438 U. S. 344 fully available to racial and nationality groups previously subject to discrimination. This action might take the form, for example, of special arrangements for obtaining referrals or making selections which will insure that groups previously subjected to discrimination are adequately served."These regulations clearly establish that, where there is a need to overcome the effects of past racially discriminatory or exclusionary practices engaged in by a federally funded institution, race-conscious action is not only permitted, but required, to accomplish the remedial objectives of Title VI. [Footnote 2/18] Of course, there is no evidence that the Medical School has been guilty of past discrimination, and consequently these regulations would not compel it to employ a program of preferential admissions in behalf of racial minorities. It would be difficult to explain from the language of Title I, however, much less from its legislative history, why the statute compels race-conscious remedies where a recipient institution has engaged in past discrimination, but prohibits such remedial action where racial minorities, as a result of the effects of past discrimination imposed by entities other than the recipient, are excluded from the benefits of federally funded programs. HEW was fully aware of the incongruous nature of such an interpretation of Title VI.Title 45 CFR § 80.3(b)(6)(ii) (1977) provides:"Even in the absence of such prior discrimination, a recipient, in administering a program, may take affirmative action to overcome the effects of conditions which resulted Page 438 U. S. 345 in limiting participation by persons of a particular race, color, or national origin."An explanatory regulation explicitly states that the affirmative action which § 80.3(b)(6)(ii) contemplates includes the use of racial preferences:"Even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not, in fact, be equally available to some racial or nationality groups. I n such circumstances, an applicant or recipient may properly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups, not then being adequately served. For example, where a university is not adequately serving members of a particular racial or nationality group, it may establish special recruitment policies to make its program better known and more readily available to such group, and take other steps to provide that group with more adequate service."45 CFR § 80.5(j) (1977) This interpretation of Title VI is fully consistent with the statute's emphasis upon voluntary remedial action and reflects the views of an agency [Footnote 2/19] responsible for achieving its objectives. [Footnote 2/20] Page 438 U. S. 346The Court has recognized that the construction of a statute by those charged with its execution is particularly deserving of respect where Congress has directed its attention to the administrative construction and left it unaltered. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. at 395 U. S. 381; Zemel v. Rusk, 381 U. S. 1, 381 U. S. 11-12 (1965). Congress recently took just this kind of action when it considered an amendment to the Departments of Labor and Health, Education, and Welfare appropriation bill for 1978, which would have restricted significantly the remedial use of race in programs funded by the appropriation. The amendment, as originally submitted by Representative Ashbrook, provided that"[n]one of the funds appropriated in this Act may be used to initiate, carry out or enforce any program of affirmative action or any other system of quotas or goals in regard to admission policies or employment practices which encourage or require any discrimination on the basis of race, creed, religion, sex or age."123 Cong.Rec. Page 438 U. S. 347 19715 (1977). In support of the measure, Representative Ashbrook argued that the 1964 Civil Rights Act never authorized the imposition of affirmative action, and that this was a creation of the bureaucracy. Id. at 19722. He explicitly stated, however, that he favored permitting universities to adopt affirmative action programs giving consideration to racial identity, but opposed the imposition of such programs by the Government. Id. at 19715. His amendment was itself amended to reflect this position by only barring the imposition of race-conscious remedies by HEW:"None of the funds appropriated in this Act may be obligated or expended in connection with the issuance, implementation, or enforcement of any rule, regulation, standard, guideline, recommendation, or order issued by the Secretary of Health, Education, and Welfare which for purposes of compliance with any ratio, quota, or other numerical requirement related to race, creed, color, national origin, or sex requires any individual or entity to take any action with respect to (1) the hiring or promotion policies or practices of such individual or entity, or (2) the admissions policies or practices of such individual or entity."Id. at 19722. This amendment was adopted by the House. Ibid. The Senate bill, however, contained no such restriction upon HEW's authority to impose race-conscious remedies, and the Conference Committee, upon the urging of the Secretary of HEW, deleted the House provision from the bill. [Footnote 2/21] More significant for present purposes, however, is the fact that even the proponents of imposing limitations upon HEW's implementation of Title VI did not challenge the right of federally funded educational institutions voluntarily to extend preferences to racial minorities. Page 438 U. S. 348Finally, congressional action subsequent to the passage of Title VI eliminates any possible doubt about Congress' views concerning the permissibility of racial preferences for the purpose of assisting disadvantaged racial minorities. It confirms that Congress did not intend to prohibit, and does not now believe that Title VI prohibits, the consideration of race as part of a remedy for societal discrimination even where there is no showing that the institution extending the preference has been guilty of past discrimination nor any judicial finding that the particular beneficiaries of the racial preference have been adversely affected by societal discrimination.Just last year, Congress enacted legislation [Footnote 2/22] explicitly requiring that no grants shall be made"for any local public works project unless the applicant gives satisfactory assurance to the Secretary [of Commerce] that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises."The statute defines the term "minority business enterprise" as"a business, at least 50 per centum of which is owned by minority group members or, in case of a publicly owned business, at least 51 per centum of the stock of which is owned by minority group members."The term "minority group members" is defined in explicitly racial terms: "citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." Although the statute contains an exemption from this requirement "to the extent that the Secretary determines otherwise," this escape clause was provided only to deal with the possibility that certain areas of the country might not contain sufficient qualified "minority business enterprises" to permit compliance with the quota provisions of the legislation. [Footnote 2/23]The legislative history of this race-conscious legislation reveals that it represents a deliberate attempt to deal with Page 438 U. S. 349 the excessive rate of unemployment among minority citizens and to encourage the development of viable minority controlled enterprises. [Footnote 2/24] It was believed that such a "set-aside" was required in order to enable minorities, still "new on the scene" and "relatively small," to compete with larger and more established companies which would always be successful in underbidding minority enterprises. 123 Cong.Rec. 5327 (1977) (Rep. Mitchell). What is most significant about the congressional consideration of the measure is that, although the use of a racial quota or "set-aside" by a recipient of federal funds would constitute a direct violation of Title VI if that statute were read to prohibit race-conscious action, no mention was made during the debates in either the House or the Senate of even the possibility that the quota provisions for minority contractors might in any way conflict with or modify Title VI. It is inconceivable that such a purported conflict would have escaped congressional attention through an inadvertent failure to recognize the relevance of Title VI. Indeed, the Act of which this affirmative action provision is a part also contains a provision barring discrimination on the basis of sex which states that this prohibition"will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination under Title VI of the Civil Rights Act of 1964."42 U.S.C. § 6709 (1976 ed.). Thus Congress, was fully aware of the applicability of Title VI to the funding of public works projects. Under these circumstances, the enactment of the 10% "set-aside" for minority enterprises reflects a congressional judgment that the remedial use of race is permissible under Title VI. We have repeatedly recognized that subsequent legislation reflecting an interpretation of an earlier Act is entitled to great weight in determining the meaning of the earlier statute. Red Lion Broadcasting Co. v. FCC, 395 U.S. at 395 U. S. 380-381; Page 438 U. S. 350 Erlenbaugh v. United States, 409 U. S. 239, 409 U. S. 243-244 (1972). See also United States v. Stewart, 311 U. S. 60, 311 U. S. 64-65 (1940). [Footnote 2/25]CPrior decisions of this Court also strongly suggest that Title VI does not prohibit the remedial use of race where such action is constitutionally permissible. In Lau v. Nichols, 414 U. S. 563 (1974), the Court held that the failure of the San Page 438 U. S. 351 Francisco school system to provide English language instruction to students of Chinese ancestry who do not speak English, or to provide them with instruction in Chinese, constituted a violation of Title VI. The Court relied upon an HEW regulation which stipulates that a recipient of federal funds "may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination" or have"the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin."45 CFR § 80.3(b)(2) (1977). It interpreted this regulation as requiring San Francisco to extend the same educational benefits to Chinese-speaking students as to English-speaking students, even though there was no finding or allegation that the city's failure to do so was a result of a purposeful design to discriminate on the basis of race.Lau is significant in two related respects. First, it indicates that, in at least some circumstances, agencies responsible for the administration of Title VI may require recipients who have not been guilty of any constitutional violations to depart from a policy of color blindness and to be cognizant of the impact of their actions upon racial minorities. Secondly, Lau clearly requires that institutions receiving federal funds be accorded considerable latitude in voluntarily undertaking race-conscious action designed to remedy the exclusion of significant numbers of Page 438 U. S. 352 minorities from the benefits of federally funded programs. Although this Court has not yet considered the question, presumably, by analogy to our decisions construing Title VII, a medical school would not be in violation of Title VI under Lau because of the serious underrepresentation of racial minorities in its student body as long as it could demonstrate that its entrance requirements correlated sufficiently with the performance of minority students in medical school and the medical profession. [Footnote 2/26] It would be inconsistent with Lau and the emphasis of Title VI and the HEW regulations on voluntary action, however, to require that an institution wait to be adjudicated to be in violation of the law before being permitted to voluntarily undertake corrective action based upon a good faith and reasonable belief that the failure of certain racial minorities to satisfy entrance requirements is not a measure of their ultimate performance as doctors, but a result of the lingering effects of past societal discrimination.We recognize that Lau, especially when read in light of our subsequent decision in Washington v. Davis, 46 U. S. 229 (1976), which rejected the general proposition that governmental action is unconstitutional solely because it has a racially disproportionate impact, may be read as being predicated upon the view that, at least under some circumstances, Title VI proscribes conduct which might not be prohibited by the Constitution. Since we are now of the opinion, for the reasons set forth above, that Title VI's standard, applicable alike to public and private recipients of federal funds, is no broader than the Constitution's, we have serious doubts concerning the correctness of what appears to be the premise of that decision. However, even accepting Lau's implication that impact alone is, in some contexts, sufficient to establish a prima facie violation of Title VI, contrary to our view that Title VI's definition of racial discrimination is absolutely coextensive with the Constitution's, this would not assist the respondent Page 438 U. S. 353 in the least. First, for the reasons discussed supra at 438 U. S. 336-350, regardless of whether Title VI's prohibitions extend beyond the Constitution's, the evidence fails to establish, and, indeed, compels the rejection of, the proposition that Congress intended to prohibit recipients of federal funds from voluntarily employing race-conscious measures to eliminate the effects of past societal discrimination against racial minorities such as Negroes. Secondly, Lau itself, for the reasons set forth in the immediately preceding paragraph, strongly supports the view that voluntary race-conscious remedial action is permissible under Title VI. If discriminatory racial impact alone is enough to demonstrate at least a prima facie Title VI violation, it is difficult to believe that the Title would forbid the Medical School from attempting to correct the racially exclusionary effects of its initial admissions policy during the first two years of the School's operation.The Court has also declined to adopt a "colorblind" interpretation of other statutes containing nondiscrimination provisions similar to that contained in Title VI. We have held under Title VII that, where employment requirements have a disproportionate impact upon racial minorities, they constitute a statutory violation, even in the absence of discriminatory intent, unless the employer is able to demonstrate that the requirements are sufficiently related to the needs of the job. [Footnote 2/27] More significantly, the Court has required that preferences be given by employers to members of racial minorities as a remedy for past violations of Title VII, even where there has been no finding that the employer has acted with a discriminatory intent. [Footnote 2/28] Finally, we have construed the Voting Page 438 U. S. 354 Rights Act.of 1965, 42 U.S.C. § 1973 et seq. (1970 ed. and Supp. V), which contains a provision barring any voting procedure or qualification that denies or abridges "the right of Page 438 U. S. 355 any citizen of the United States to vote on account of race or color," as permitting States to voluntarily take race into account in a way that fairly represents the voting strengths of different racial groups in order to comply with the commands of the statute, even where the result is a gain for one racial group at the expense of others. [Footnote 2/29]These prior decisions are indicative of the Court's unwillingness to construe remedial statutes designed to eliminate discrimination against racial minorities in a manner which would impede efforts to attain this objective. There is no justification for departing from this course in the case of Title VI and frustrating the clear judgment of Congress that race-conscious remedial action is permissible.We turn, therefore, to our analysis of the Equal Protection Clause of the Fourteenth Amendment.IIIAThe assertion of human equality is closely associated with the proposition that differences in color or creed, birth or status, are neither significant nor relevant to the way in which persons should be treated. Nonetheless, the position that such factors must be "constitutionally an irrelevance," Edwards v. California, 314 U. S. 160, 314 U. S. 185 (1941) (Jackson, J., concurring), summed up by the shorthand phrase " [o]ur Constitution is color-blind," Plessy v. Ferguson, 163 U. S. 537, 163 U. S. 559 (1896) (Harlan, J., dissenting), has never been adopted by this Court as the proper meaning of the Equal Protection Clause. Indeed, Page 438 U. S. 356 we have expressly rejected this proposition on a number of occasions.Our cases have always implied that an "overriding statutory purpose," McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 192 (1984), could be found that would justify racial classifications. See, e.g., ibid.; Loving v. Virginia, 388 U. S. 1, 388 U. S. 11 (1967); Korematsu v. United States, 323 U. S. 214, 323 U. S. 216 (1944); Hirabayashi v. United States, 320 U. S. 81, 320 U. S. 100-101 (1943). More recently, in McDaniel v. Barresi, 402 U. S. 39 (1971) this Court unanimously reversed the Georgia Supreme Court which had held that a desegregation plan voluntarily adopted by a local school board, which assigned students on the basis of race, was per se invalid because it was not colorblind. And in North Carolina Board of Education v. Swann, we held, again unanimously, that a statute mandating colorblind school assignment plans could not stand "against the background of segregation," since such a limit on remedies would "render illusory the promise of Brown [I]." 402 U.S. at 402 U. S. 45-46.We conclude, therefore, that racial classifications are not per se invalid under the Fourteenth Amendment. Accordingly, we turn to the problem of articulating what our role should be in reviewing state action that expressly classifies by race.BRespondent argues that racial classifications are always suspect, and, consequently, that this Court should weigh the importance of the objectives served by Davis' special admissions program to see if they are compelling. In addition, he asserts that this Court must inquire whether, in its judgment, there are alternatives to racial classifications which would suit Davis' purposes. Petitioner, on the other hand, states that our proper role is simply to accept petitioner's determination that the racial classifications used by its program are reasonably related to what it tells us are its benign Page 438 U. S. 357 purposes. We reject petitioner's view, but, because our prior cases are in many respects inapposite to that before us now, we find it necessary to define with precision the meaning of that inexact term, "strict scrutiny."Unquestionably we have held that a government practice or statute which restricts "fundamental rights" or which contains "suspect classifications" is to be subjected to "strict scrutiny," and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available. [Footnote 2/30] See, e.g., San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 411 U. S. 16-17 (1973); Dunn v. Blumstein, 405 U. S. 330 (1972). But no fundamental right is involved here. See San Antonio, supra at 422 U. S. 29-36. Nor do whites, as a class, have any of the"traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process."Id. at 422 U. S. 28; see United States v. Carolene Products Co., 304 U. S. 144, 304 U. S. 152 n. 4 (1938). [Footnote 2/31]Moreover, if the University's representations are credited, this is not a case where racial classifications are "irrelevant, and therefore prohibited." Hirabayashi, supra at 320 U. S. 100. Nor has anyone suggested that the University's purposes contravene the cardinal principle that racial classifications that stigmatize -- because they are drawn on the presumption that one race is inferior to another or because they put the weight of government Page 438 U. S. 358 behind racial hatred and separatism -- are invalid without more. See Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 374 (1886); [Footnote 2/32] accord, Strauder v. West Virginia, 100 U. S. 303, 100 U. S. 308 (1880); Korematsu v. United States, supra at 323 U. S. 223; Oyama v. California, 332 U. S. 633, 332 U. S. 663 (1948) (Murphy, J., concurring); Brown I, 347 U. S. 483 (1954); McLaughlin v. Florida, supra, at 379 U. S. 191-192; Loving v. Virginia, supra, at 388 U. S. 11-12; Reitman v. Mulkey, 387 U. S. 369, 387 U. S. 375-376 (1967); United Jewish Organizations v. Carey, 430 U. S. 144, 430 U. S. 165 (1977) (UJO) (opinion of WHITE, J., joined by REHNQUIST and STEVENS, JJ.); id. at 430 U. S. 169 (opinion concurring in part). [Footnote 2/33]On the other hand, the fact that this case does not fit neatly into our prior analytic framework for race cases does not mean that it should be analyzed by applying the very loose rational basis standard of review that is the very least that is always applied in equal protection cases. [Footnote 2/34]"'[T]he mere recitation of a benign, compensatory purpose is not an automatic shield Page 438 U. S. 359 which protects.against any inquiry into the actual purpose underlying a statutory scheme.'"Califano v. Webster, 430 U. S. 313, 430 U. S. 317 (1977), quoting Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S. 648 (1975). Instead, a number of considerations -- developed in gender discrimination cases but which carry even more force when applied to racial classifications -- lead us to conclude that racial classifications designed to further remedial purposes "must serve important governmental objectives, and must be substantially related to achievement of those objectives.'" Califano v. Webster, supra at 430 U. S. 317, quoting Craig v. Boren, 429 U. S. 190, 429 U. S. 197 (1976). [Footnote 2/35] Page 438 U. S. 360First, race, like, "gender-based classifications, too often [has] been inexcusably utilized to stereotype and stigmatize politically powerless segments of society." Kahn v. Shevin, 416 U. S. 351, 416 U. S. 357 (1974) (dissenting opinion). While a carefully tailored statute designed to remedy past discrimination could avoid these vices, see Califano v. Webster, supra; Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, supra, we nonetheless have recognized that the line between honest and thoughtful appraisal of the effects of past discrimination and paternalistic stereotyping is not so clear, and that a statute based on the latter is patently capable of stigmatizing all women with a badge of inferiority. Cf. Schlesinger v. Ballard, supra at 419 U. S. 508; UJO, supra at 430 U. S. 174, and n. 3 (opinion concurring in part); Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 223 (1977) (STEVENS, J., concurring in judgment). See also Stanton v. Stanton, 421 U. S. 7, 421 U. S. 14-15 (1975). State programs designed ostensibly to ameliorate the effects of past racial discrimination obviously create the same hazard of stigma, since they may promote racial separatism and reinforce the views of those who believe that members of racial minorities are inherently incapable of succeeding on their own. See UJO, supra at 430 U. S. 172 (opinion concurring in part); ante at 438 U. S. 298 (opinion of POWELL, J.).Second, race, like gender and illegitimacy, see Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972), is an immutable characteristic which its possessors are powerless to escape or set aside. While a classification is not per se invalid because it divides classes on the basis of an immutable characteristic, see supra at 438 U. S. 355-356, it is nevertheless true that such divisions are contrary to our deep belief that "legal burdens should bear some relationship to individual responsibility or Page 438 U. S. 361 wrongdoing," Weber, supra at 406 U. S. 175; Frontiero v. Richardson, 411 U. S. 677, 411 U. S. 686 (1973) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.), and that advancement sanctioned, sponsored, or approved by the State should ideally be based on individual merit or achievement, or at the least on factors within the control of an individual. See UJO, 430 U.S. at 430 U. S. 173 (opinion concurring in part); Kotch v. Board of River Port Pilot Comm'rs, 330 U. S. 552, 330 U. S. 566 (1947) (Rutledge, J., dissenting).Because this principle is so deeply rooted, it might be supposed that it would be considered in the legislative process and weighed against the benefits of programs preferring individuals because of their race. But this is not necessarily so: the"natural consequence of our governing processes [may well be] that the most 'discrete and insular' of whites . . . will be called upon to bear the immediate, direct costs of benign discrimination."UJO, supra at 430 U. S. 174 (opinion concurring in part). Moreover, it is clear from our cases that there are limits beyond which majorities may not go when they classify on the basis of immutable characteristics. See, e.g., Weber, supra. Thus, even if the concern for individualism is weighed by the political process, that weighing cannot waive the personal rights of individuals under the Fourteenth Amendment. See Lucas v. Colorado General Assembly, 377 U. S. 713, 377 U. S. 736 (1964).In sum, because of the significant risk that racial classifications established for ostensibly benign purposes can be misused, causing effects not unlike those created by invidious classifications, it is inappropriate to inquire only whether there is any conceivable basis that might sustain such a classification. Instead, to justify such a classification, an important and articulated purpose for its use must be shown. In addition, any statute must be stricken that stigmatizes any group or that singles out those least well represented in the political process to bear the brunt of a benign program. Thus, our review under the Fourteenth Amendment should be Page 438 U. S. 362 strict -- not "strict' in theory and fatal in fact," [Footnote 2/36] because it is stigma that causes fatality -- but strict and searching nonetheless.IVDavis' articulated purpose of remedying the effects of past societal discrimination is, under our cases, sufficiently important to justify the use of race-conscious admissions programs where there is a sound basis for concluding that minority underrepresentation is substantial and chronic, and that the handicap of past discrimination is impeding access of minorities to the Medical School.AAt least since Green v. County School Board, 391 U. S. 430 (1968), it has been clear that a public body which has itself been adjudged to have engaged in racial discrimination cannot bring itself into compliance with the Equal Protection Clause simply by ending its unlawful acts and adopting a neutral stance. Three years later, Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971), and its companion cases, Davis v. School Comm'rs of Mobile County, 402 U. S. 33 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); and North Carolina Board of Education v. Swann, 402 U. S. 43 (1971), reiterated that racially neutral remedies for past discrimination were inadequate where consequences of past discriminatory acts influence or control present decisions. See, e.g., Charlotte-Mecklenburg, supra at 402 U. S. 28. And the Court further held both that courts could enter desegregation orders which assigned students and faculty by reference to race, Charlotte-Mecklenburg, supra; Davis, supra; United States v. Montgomery County Board of Ed., 395 U. S. 225 (1969), and that local school boards could voluntarily adopt desegregation Page 438 U. S. 363 plans which made express reference to race if this was necessary to remedy the effects of past discrimination. McDaniel v. Barresi, supra. Moreover, we stated that school boards, even in the absence of a judicial finding of past discrimination, could voluntarily adopt plans which assigned students with the end of creating racial pluralism by establishing fixed ratios of black and white students in each school. Charlotte-Mecklenburg, supra at 402 U. S. 16. In each instance, the creation of unitary school systems, in which the effects of past discrimination had been "eliminated root and branch," Green, supra at 391 U. S. 438, was recognized as a compelling social goal justifying the overt use of race.Finally, the conclusion that state educational institutions may constitutionally adopt admissions programs designed to avoid exclusion of historically disadvantaged minorities, even when such programs explicitly take race into account, finds direct support in our cases construing congressional legislation designed to overcome the present effects of past discrimination. Congress can and has outlawed actions which have a disproportionately adverse and unjustified impact upon members of racial minorities and has required or authorized race-conscious action to put individuals disadvantaged by such impact in the position they otherwise might have enjoyed. See Franks v. Bowman Transportation Co., 424 U. S. 747 (1976); Teamsters v. United States, 431 U. S. 324 (1977). Such relief does not require as a predicate proof that recipients of preferential advancement have been individually discriminated against; it is enough that each recipient is within a general class of persons likely to have been the victims of discrimination. See id. at 431 U. S. 357-362. Nor is it an objection to such relief that preference for minorities will upset the settled expectations of nonminorities. See Franks, supra. In addition, we have held that Congress, to remove barriers to equal opportunity, can and has required employers to use test criteria that fairly reflect the qualifications of minority applicants Page 438 U. S. 364 vis-a-vis nonminority applicants, even if this means interpreting the qualifications of an applicant in light of his race. See Albemarle Paper Co. v. Moody, 422 U. S. 405, 422 U. S. 435 (1975). [Footnote 2/37]These cases cannot be distinguished simply by the presence of judicial findings of discrimination, for race-conscious remedies have been approved where such findings have not been made. McDaniel v. Barresi, supra; UJO; see Califano v. Webster, 430 U. S. 313 (1977); Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, 416 U. S. 351 (1974). See also Katzenbach v. Morgan, 384 U. S. 641 (1966). Indeed, the requirement of a judicial determination of a constitutional or statutory violation as a predicate for race-conscious remedial actions would be self-defeating. Such a requirement would severely undermine efforts to achieve voluntary compliance with the requirements of law. And our society and jurisprudence have always stressed the value of voluntary efforts to further the objectives of the law. Judicial intervention is a last resort to achieve cessation of illegal conduct or the remedying of its effects, rather than a prerequisite to action. [Footnote 2/38] Page 438 U. S. 365Nor can our cases be distinguished on the ground that the entity using explicit racial classifications itself had violated § 1 of the Fourteenth Amendment or an antidiscrimination regulation, for again race-conscious remedies have been approved where this is not the case. See UJO, 430 U.S. at 430 U. S. 157 (opinion of WHITE, J., joined by BRENNAN, BLACKMUN, and STEVENS, JJ.); [Footnote 2/39] id. at 430 U. S. 167 (opinion of WHITE, J., joined by REHNQUIST and STEVENS, JJ.); [Footnote 2/40] cf. Califano v. Webster, supra, at 430 U. S. 317; Kahn v. Shevin, supra. Moreover, the presence or absence of past discrimination by universities or employers is largely irrelevant to resolving respondent's constitutional claims. The claims of those burdened by the race-conscious actions of a university or employer who has never been adjudged in violation of an antidiscrimination law are not any more or less entitled to deference than the claims of the burdened nonminority workers in Franks v. Bowman Transportation Co., supra, in which the employer had violated Title VII, for, in each case, the employees are innocent of past discrimination. And, although it might be argued that, where an employer has violated an antidiscrimination law, the expectations of nonminority workers are themselves products of discrimination and hence "tainted," see Franks, supra at 424 U. S. 776, and therefore more easily upset, the same argument can be made with respect to respondent. If it was reasonable to conclude -- as we hold that it was -- that the failure of minorities to qualify for admission at Davis under regular procedures was due principally to the effects of past discrimination, than there is a reasonable likelihood that, but for pervasive racial discrimination, Page 438 U. S. 366 respondent would have failed to qualify for admission even in the absence of Davis' special admissions program. [Footnote 2/41]Thus, our cases under Title VII of the Civil Rights Act have held that, in order to achieve minority participation in previously segregated areas of public life, Congress may require or authorize preferential treatment for those likely disadvantaged by societal racial discrimination. Such legislation has been sustained even without a requirement of findings of intentional racial discrimination by those required or authorized to accord preferential treatment, or a case-by-case determination that those to be benefited suffered from racial discrimination. These decisions compel the conclusion that States also may adopt race-conscious programs designed to overcome substantial, chronic minority underrepresentation where there is reason to believe that the evil addressed is a product of past racial discrimination. [Footnote 2/42] Page 438 U. S. 367Title VII was enacted pursuant to Congress' power under the Commerce Clause and § 5 of the Fourteenth Amendment. To he extent that Congress acted under the Commerce Clause power, it was restricted in the use of race in governmental decisionmaking by the equal protection component of the Due Process Clause of the Fifth Amendment precisely to the same extent as are the States by § 1 of the Fourteenth Amendment. [Footnote 2/43] Therefore, to the extent that Title VII rests on the Commerce Clause power, our decisions such a Franks and Page 438 U. S. 368 Teamsters v. United States, 431 U. S. 324 (1977), implicitly recognize that the affirmative use of race is consistent with the equal protection component of the Fifth Amendment, and therefore with the Fourteenth Amendment. To the extent that Congress acted pursuant to § 5 of the Fourteenth Amendment, those cases impliedly recognize that Congress was empowered under that provision to accord preferential treatment to victims of past discrimination in order to overcome the effects of segregation, and we see no reason to conclude that the States cannot voluntarily accomplish under § 1 of the Fourteenth Amendment what Congress under § 5 of the Fourteenth Amendment validly may authorize or compel either the States or private persons to do. A contrary position would conflict with the traditional understanding recognizing the competence of the States to initiate measures consistent with federal policy in the absence of congressional preemption of the subject matter. Nothing whatever in the legislative history of either the Fourteenth Amendment or the Civil Rights Acts even remotely suggests that the States are foreclosed from furthering the fundamental purpose of equal opportunity to which the Amendment and these Acts are addressed. Indeed, voluntary initiatives by the States to achieve the national goal of equal opportunity have been recognized to be essential to its attainment. "To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment." Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 98 (1945) (Frankfurter, J., concurring). [Footnote 2/44] We therefore Page 438 U. S. 369 conclude that Davis' goal of admitting minority students disadvantaged by the effects of past discrimination is sufficiently important to justify use of race-conscious admissions criteria.BProperly construed, therefore, our prior cases unequivocally show that a state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have, and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large. There is no question that Davis' program is valid under this test.Certainly, on the basis of the undisputed factual submissions before this Court, Davis had a sound basis for believing that the problem of underrepresentation of minorities was substantial and chronic, and that the problem was attributable to handicaps imposed on minority applicants by past and present racial discrimination. Until at least 1973, the practice of medicine in this country was, in fact, if not in law, largely the prerogative of whites. [Footnote 2/45] In 1950, for example, while Negroes Page 438 U. S. 370 constituted 10% of the total population, Negro physicians constituted only 2.2% of the total number of physicians. [Footnote 2/46] The overwhelming majority of these, moreover, were educated in two predominantly Negro medical schools, Howard and Meharry. [Footnote 2/47] By 1970, the gap between the proportion of Negroes in medicine and their proportion in the population had widened: the number of Negroes employed in medicine remained frozen at 2.2% [Footnote 2/48] while the Negro population had increased to 11.1%. [Footnote 2/49] The number of Negro admittees to predominantly white medical schools, moreover, had declined in absolute numbers during the years 1955 to 1964. Odegaard 19.Moreover, Davis had very good reason to believe that the national pattern of underrepresentation of minorities in medicine would be perpetuated if it retained a single admissions standard. For example, the entering classes in 1968 and 1969, the years in which such a standard was used, included only 1 Chicano and 2 Negroes out of the 50 admittees for each year. Nor is there any relief from this pattern of underrepresentation in the statistics for the regular admissions program in later years. [Footnote 2/50]Davis clearly could conclude that the serious and persistent underrepresentation of minorities in medicine depicted by these statistics is the result of handicaps under which minority applicants labor as a consequence of a background of deliberate, purposeful discrimination against minorities in education Page 438 U. S. 371 and in society generally, as well as in the medical profession. From the inception of our national life, Negroes have been subjected to unique legal disabilities impairing access to equal educational opportunity. Under slavery, penal sanctions were imposed upon anyone attempting to educate Negroes. [Footnote 2/51] After enactment of the Fourteenth Amendment the States continued to deny Negroes equal educational opportunity, enforcing a strict policy of segregation that itself stamped Negroes as inferior, Brown I, 347 U. S. 483 (1954), that relegated minorities to inferior educational institutions, [Footnote 2/52] and that denied them intercourse in the mainstream of professional life necessary to advancement. See Sweatt v. Painter, 339 U. S. 629 (1950). Segregation was not limited to public facilities, moreover, but was enforced by criminal penalties against private action as well. Thus, as late as 1908, this Court enforced a state criminal conviction against a private college for teaching Negroes together with whites. Berea College v. Kentucky, 211 U. S. 45. See also Plessy v. Ferguson, 163 U. S. 537 (1896).Green v. County School Board, 391 U. S. 430 (1968), gave explicit recognition to the fact that the habit of discrimination and the cultural tradition of race prejudice cultivated by centuries of legal slavery and segregation were not immediately dissipated when Brown I, supra, announced the constitutional principle that equal educational opportunity and participation in all aspects of American life could not be denied on the basis of race. Rather, massive official and private resistance prevented, and to a lesser extent still prevents, attainment of equal opportunity in education at all levels and in the professions. The generation of minority students applying to Davis Medical School since it opened in 1968 -- most of whom Page 438 U. S. 372 were born before or about the time Brown I was decided -- clearly have been victims of this discrimination. Judicial decrees recognizing discrimination in public education in California testify to the fact of widespread discrimination suffered by California-born minority applicants; [Footnote 2/53] many minority group members living in California, moreover, were born and reared in school districts in Southern States segregated by law. [Footnote 2/54] Since separation of schoolchildren by race"generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone,"Brown I, supra at 347 U. S. 494, the conclusion is inescapable that applicants to medical school must be few indeed who endured the effects of de jure segregation, the resistance to Brown I, or the equally debilitating pervasive private discrimination fostered by our long history of official discrimination, cf. Reitman v. Mulkey, 387 U. S. 369 (1967), and yet come to the starting line with an education equal to whites. [Footnote 2/55]Moreover, we need not rest solely on our own conclusion that Davis had sound reason to believe that the effects of past discrimination were handicapping minority applicants to the Medical School, because the Department of Health, Education, and Welfare, the expert agency charged by Congress with promulgating regulations enforcing Title VI of the Civil Rights Act of 1964, see supra at 438 U. S. 341-343, has also reached the conclusion that race may be taken into account in situations Page 438 U. S. 373 where a failure to do so would limit participation by minorities in federally funded programs, and regulations promulgated by the Department expressly contemplate that appropriate race-conscious programs may be adopted by universities to remedy unequal access to university programs caused by their own or by past societal discrimination. See supra at 438 U. S. 344-345, discussing 45 CFR §§ 80.3(b)(6)(ii) and 80.5(j) (1977). It cannot be questioned that, in the absence of the special admissions program, access of minority students to the Medical School would be severely limited and, accordingly, race-conscious admissions would be deemed an appropriate response under these federal regulations. Moreover, the Department's regulatory policy is not one that has gone unnoticed by Congress. See supra at 438 U. S. 346-347. Indeed, although an amendment to an appropriations bill was introduced just last year that would have prevented the Secretary of Health, Education, and Welfare from mandating race-conscious programs in university admissions, proponents of this measure, significantly, did not question the validity of voluntary implementation of race-conscious admissions criteria. See ibid. In these circumstances, the conclusion implicit in the regulations -- that the lingering effects of past discrimination continue to make race-conscious remedial programs appropriate means for ensuring equal educational opportunity in universities -- deserves considerable judicial deference. See, e.g., Katzenbach v. Morgan, 384 U. S. 641 (1966); UJO, 430 U.S. at 430 U. S. 175-178 (opinion concurring in part). [Footnote 2/56]CThe second prong of our test -- whether the Davis program stigmatizes any discrete group or individual and whether race Page 438 U. S. 374 is reasonably used in light of the program's objectives -- is clearly satisfied by the Davis program.It is not even claimed that Davis' program in any way operates to stigmatize or single out any discrete and insular, or even any identifiable, nonminority group. Nor will harm comparable to that imposed upon racial minorities by exclusion or separation on grounds of race be the likely result of the program. It does not, for example, establish an exclusive preserve for minority students apart from and exclusive of whites. Rather, its purpose is to overcome the effects of segregation by bringing the races together. True, whites are excluded from participation in the special admissions program, but this fact only operates to reduce the number of whites to be admitted in the regular admissions program in order to permit admission of a reasonable percentage -- less than their proportion of the California population [Footnote 2/57] -- of otherwise underrepresented qualified minority applicants. [Footnote 2/58] Page 438 U. S. 375Nor was Bakke in any sense stamped as inferior by the Medical School's rejection of him. Indeed, it is conceded by all that he satisfied those criteria regarded by the school as generally relevant to academic performance better than most of the minority members who were admitted. Moreover, there is absolutely no basis for concluding that Bakke's rejection as a result of Davis' use of racial preference will affect him throughout his life in the same way as the segregation of the Negro schoolchildren in Brown I would have affected them. Unlike discrimination against racial minorities, the use of racial preferences for remedial purposes does not inflict a pervasive injury upon individual whites in the sense that, wherever they go or whatever they do, there is a significant likelihood that they will be treated as second-class citizens because of their color. This distinction does not mean that the exclusion of a white resulting from the preferential use of race is not sufficiently serious to require justification; but it does mean that the injury inflicted by such a policy is not distinguishable from disadvantages caused by a wide range of government actions, none of which has ever been thought impermissible for that reason alone.In addition, there is simply no evidence that the Davis program discriminates intentionally or unintentionally against any minority group which it purports to benefit. The program does not establish a quota in the invidious sense of a ceiling on the number of minority applicants to be admitted. Nor can the program reasonably be regarded as stigmatizing the program's beneficiaries or their race as inferior. The Davis program does not simply advance less qualified applicants; rather, it compensates applicants, who it is uncontested are fully qualified to study medicine, for educational disadvantages which it was reasonable to conclude were a product of Page 438 U. S. 376 state-fostered discrimination. Once admitted, these students must satisfy the same degree requirements as regularly admitted students; they are taught by the same faculty in the same classes; and their performance is evaluated by the same standards by which regularly admitted students are judged. Under these circumstances, their performance and degrees must be regarded equally with the regularly admitted students with whom they compete for standing. Since minority graduates cannot justifiably be regarded as less well qualified than nonminority graduates by virtue of the special admissions program, there is no reasonable basis to conclude that minority graduates at schools using such programs would be stigmatized as inferior by the existence of such programs.DWe disagree with the lower courts' conclusion that the Davis program's use of race was unreasonable in light of its objectives. First, as petitioner argues, there are no practical means by which it could achieve its ends in the foreseeable future without the use of race-conscious measures. With respect to any factor (such as poverty or family educational background) that may be used as a substitute for race as an indicator of past discrimination, whites greatly outnumber racial minorities simply because whites make up a far larger percentage of the total population, and therefore far outnumber minorities in absolute terms at every socioeconomic level. [Footnote 2/59] For example, of a class of recent medical school applicants from families with less than $10,000 income, at least 71% were white. [Footnote 2/60] Of all 1970 families headed by a Page 438 U. S. 377 person not a highschool graduate which included related children under 18, 80% were white and 20% were racial minorities. [Footnote 2/61] Moreover, while race is positively correlated with differences in GPA and MCAT scores, economic disadvantage is not. Thus, it appears that economically disadvantaged whites do not score less well than economically advantaged whites, while economically advantaged blacks score less well than do disadvantaged whites. [Footnote 2/62] These statistics graphically illustrate that the University's purpose to integrate its classes by compensating for past discrimination could not be achieved by a general preference for the economically disadvantaged or the children of parents of limited education unless such groups were to make up the entire class.Second, the Davis admissions program does not simply equate minority status with disadvantage. Rather, Davis considers on an individual basis each applicant's personal history to determine whether he or she has likely been disadvantaged by racial discrimination. The record makes clear that only minority applicants likely to have been isolated from the mainstream of American life are considered in the special program; other minority applicants are eligible only through the regular admissions program. True, the procedure by which disadvantage is detected is informal, but we have never insisted that educators conduct their affairs through adjudicatory proceedings, and such insistence here is misplaced. A case-by-case inquiry into the extent to which each individual applicant has been affected, either directly or indirectly, by racial discrimination, would seem to be, as a practical matter, virtually impossible, despite the fact that there are excellent reasons for concluding that such effects generally exist. When individual measurement is impossible or extremely impractical, there is nothing to prevent a State Page 438 U. S. 378 from using categorical means to achieve its ends, at least where the category is closely related to the goal. Cf. Gaston County v. United States, 395 U. S. 285, 395 U. S. 25-296 (1969); Katzenbach v. Morgan, 384 U. S. 641 (1966). And it is clear from our cases that specific proof that a person has been victimized by discrimination is not a necessary predicate to offering him relief where the probability of victimization is great. See Teamsters v. United States, 431 U. S. 324 (1977).EFinally, Davis' special admissions program cannot be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority applicants, rather than using minority status as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants. For purposes of constitutional adjudication, there is no difference between the two approaches. In any admissions program which accords special consideration to disadvantaged racial minorities, a determination of the degree of preference to be given is unavoidable, and any given preference that results in the exclusion of a white candidate is no more or less constitutionally acceptable than a program such as that at Davis. Furthermore, the extent of the preference inevitably depends on how many minority applicants the particular school is seeking to admit in any particular year, so long as the number of qualified minority applicants exceeds that number. There is no sensible, and certainly no constitutional, distinction between, for example, adding a set number of points to the admissions rating of disadvantaged minority applicants as an expression of the preference with the expectation that this will result in the admission of an approximately determined number of qualified minority applicants and setting a fixed number of places for such applicants, as was done here. [Footnote 2/63] Page 438 U. S. 379The "Harvard" program, see ante at 438 U. S. 316-318, as those employing it readily concede, openly and successfully employs a racial criterion for the purpose of ensuring that some of the scarce places in institutions of higher education are allocated to disadvantaged minority students. That the Harvard approach does not also make public the extent of the preference and the precise workings of the system, while the Davis program employs a specific, openly stated number, does not condemn the latter plan for purposes of Fourteenth Amendment adjudication. It may be that the Harvard plan is more acceptable to the public than is the Davis "quota." If it is, any State, including California, is free to adopt it in preference to a less acceptable alternative, just as it is generally free, as far as the Constitution is concerned, to abjure granting any racial preferences in its admissions program. But there is no basis for preferring a particular preference program simply because, in achieving the same goals that the Davis Medical School is pursuing, it proceeds in a manner that is not immediately apparent to the public.VAccordingly, we would reverse the judgment of the Supreme Court of California holding the Medical School's special admissions program unconstitutional and directing respondent's admission, as well as that portion of the judgment enjoining the Medical School from according any consideration to race in the admissions process.[Footnote 2/1]We also agree with MR. JUSTICE POWELL that a plan like the "Harvard" plan, see ante at 438 U. S. 316-318, is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination.[Footnote 2/2]See Plessy v. Ferguson, 163 U. S. 537 (1896).[Footnote 2/3]New Orleans City Park Improvement Assn. v. Detiege, 358 U. S. 54 (1958); Muir v. Louisville Park Theatrical Assn., 347 U.S. 971 (1954); Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955); Holmes v. Atlanta, 350 U.S. 879 (1955); Gayle v. Browder, 352 U.S. 903 (1956).[Footnote 2/4]See Green v. County School Board, 391 U. S. 430 (1968).[Footnote 2/5]See Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971); Davis v. School Comm'rs of Mobile County, 402 U. S. 33 (1971); North Carolina Board of Education v. Swann, 402 U. S. 43 (1971).[Footnote 2/6]See, e.g., cases collected in Monell v. New York City Dept. of Social Services, 436 U. S. 658, 436 U. S. 663 n. 5 (1978).[Footnote 2/7]Section 601 of Title VI provides:"No 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.[Footnote 2/8]MR. JUSTICE WHITE believes we should address the "private right of action" issue. Accordingly, he has filed a separate opinion stating his view that there is no private right of action under Title VI. See post, p. 438 U. S. 379.[Footnote 2/9]"Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination. Direct discrimination by Federal, State or local governments is prohibited by the Constitution. But indirect discrimination, through the use of Federal funds, is just as invidious; and it should not be necessary to resort to the courts to prevent each individual violation. Congress and the Executive have their responsibilities to uphold the Constitution also. . . . ""Many statutes providing Federal financial assistance, however, define with such precision both the Administrator's role and the conditions upon which specified amounts shall be given to designated recipients that the amount of administrative discretion remaining -- which might be used to withhold funds if discrimination were not ended -- is, at best, questionable. No administrator has the unlimited authority to invoke the Constitution in opposition to the mandate of the Congress. Nor would it always be helpful to require unconditionally -- as is often proposed -- the withdrawal of all Federal funds from programs urgently needed by Negroes as well as whites, for this may only penalize those who least deserve it without ending discrimination.""Instead of permitting this issue to become a political device often exploited by those opposed to social or economic progress, it would be better at this time to pass a single comprehensive provision making it clear that the Federal Government is not required, under any statute, to furnish any kind of financial assistance -- by way of grant, loan, contract, guaranty, insurance, or otherwise -- to any program or activity in which racial discrimination occurs. This would not permit the Federal Government to cut off all Federal aid of all kinds as a means of punishing an area for the discrimination occurring therein -- but it would clarify the authority of any administrator with respect to Federal funds or financial assistance and discriminatory practices."109 Cong.Rec. 11161 (1963).[Footnote 2/10]See, e.g., 110 Cong.Rec. 2732 (1964) (Rep. Dawson); id. at 2481-2482 (Rep. Ryan); id. at 2766 (Rep. Matzunaga); id. at 2595 (Rep. Donahue) .[Footnote 2/11]There is also language in 42 U.S.C. § 2000d-5, enacted in 1966, which supports the conclusion that Title VI's standard is that of the Constitution. Section 2000d-5 provides that,"for the purpose of determining whether a local educational agency is in compliance with [Title VI], compliance by such agency with a final order or judgment of a Federal court for the desegregation of the school or school system operated by such agency shall be deemed to be compliance with [Title VI], insofar as the matters covered in the order or judgment are concerned."This provision was clearly intended to avoid subjecting local educational agencies simultaneously to the jurisdiction of the federal courts and the federal administrative agencies in connection with the imposition of remedial measures designed to end school segregation. Its inclusion reflects the congressional judgment that the requirements imposed by Title VI are identical to those imposed by the Constitution as interpreted by the federal courts.[Footnote 2/12]As has already been seen, the proponents of Title VI in the House were motivated by the identical concern. See remarks of Representative Celler (110 Cong.Rec. 2467 (1964)); Representative Ryan (id. at 1643, 2481-2482); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, Additional Views of Seven Representatives 2425 (1963).[Footnote 2/13]See separate opinion of MR. JUSTICE WHITE, post at 438 U. S. 382-383, n. 2.[Footnote 2/14]These remarks also reflect the expectations of Title VI's proponents that the application of the Constitution to the conduct at the core of their concern -- the segregation of Negroes in federally funded programs and their exclusion from the full benefits of such programs -- was clear. See supra at 438 U. S. 333-336; infra at 438 U. S. 340-342, n. 17.[Footnote 2/15]Testimony of Attorney General Kennedy in Hearings before the Senate Committee on the Judiciary on S. 1731 and S. 1750, 88th Cong., 1st Sess., 398-399 (1963).[Footnote 2/16]See, e.g., 110 Cong.Rec. 6544, 13820 (1964) (Sen. Humphrey); id. at 6050 (Sen. Javits); id. at 12677 (Sen. Allott).[Footnote 2/17]Our Brother STEVENS finds support for a colorblind theory of Title VI in its legislative history, but his interpretation gives undue weight to a few isolated passages from among the thousands of pages of the legislative history of Title VI. See id. at 6547 (Sen. Humphrey); id. at 6047, 7055 (Sen. Pastore); id. at 12675 (Sen. Allott); id. at 6561 (Sen. Kuchel). These fragmentary comments fall far short of supporting a congressional intent to prohibit a racially conscious admissions program designed to assist those who are likely to have suffered injuries from the effects of past discrimination. In the first place, these statements must be read in the context in which they were made. The concern of the speakers was far removed from the incidental injuries which may be inflicted upon nonminorities by the use of racial preferences. It was rather with the evil of the segregation of Negroes in federally financed programs and, in some cases, their arbitrary exclusion on account of race from the benefits of such programs. Indeed, in this context, there can be no doubt that the Fourteenth Amendment does command color blindness, and forbids the use of racial criteria. No consideration was given by these legislators, however, to the permissibility of racial preference designed to redress the effects of injuries suffered as a result of one's color. Significantly, one of the legislators, Senator Pastore, and perhaps also Senator Kuchel, who described Title VI as proscribing decisionmaking based upon skin color, also made it clear that Title VI does not outlaw the use of racial criteria in all circumstances. See supra at 438 U. S. 339-340; 110 Cong.Rec. 6562 (1964). See also id. at 2494 (Rep. Celler). Moreover, there are many statements in the legislative history explicitly indicating that Congress intended neither to require nor to prohibit the remedial use of racial preferences where not otherwise required or prohibited by the Constitution. Representative MacGregor addressed directly the problem of preferential treatment:"Your mail and mine, your contacts and mine with our constituents, indicates a great degree of misunderstanding about this bill. People complain about racial 'balancing' in the public schools, about open occupancy in housing, about preferential treatment or quotas in employment. There is a mistaken belief that Congress is legislating in these areas in this bill. When we drafted this bill, we excluded these issues largely because the problems raised by these controversial questions are more properly handled at a governmental level close to the American people and by communities and individuals themselves. The Senate has spelled out our intentions more specifically."Id. at 15893. Other legislators explained that the achievement of racial balance in elementary and secondary schools where there had been no segregation by law was not compelled by Title VI, but was rather left to the judgment of state and local communities. See, e.g., id. at 10920 (Sen. Javits); id. at 5807, 5266 (Sen. Keating); id. at 13821 (Sens. Humphrey and Saltonstall). See also id. at 6562 (Sen. Kuchel); id. at 13695 (Sen. Pastore).Much the same can be said of the scattered remarks to be found in the legislative history of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), which prohibits employment discrimination on the basis of race in terms somewhat similar to those contained in Title VI, see 42 U.S.C. § 2000e-2(a)(1) (unlawful "to fail or refuse to hire" any applicant "because of such individual's race, color, religion, sex, or national origin. . . . "), to the effect that any deliberate attempt by an employer to maintain a racial balance is not required by the statute, and might in fact violate it. See, e.g., 110 Cong.Rec. 7214 (1964) (Sens. Clark and Case); id. at 6549 (Sen. Humphrey); id. at 2560 (Rep. Goodell). Once again, there is no indication that Congress intended to bar the voluntary use of racial preferences to assist minorities to surmount the obstacles imposed by the remnants of past discrimination. Even assuming that Title VII prohibits employers from deliberately maintaining a particular racial composition in their workforce as an end in itself, this does not imply, in the absence of any consideration of the question, that Congress intended to bar the use of racial preferences as a tool for achieving the objective of remedying past discrimination or other compelling ends. The former may well be contrary to the requirements of the Fourteenth Amendment (where state action is involved), while the latter presents very different constitutional considerations. Indeed, as discussed infra at 438 U. S. 353, this Court has construed Title VII as requiring the use of racial preferences for the purpose of hiring and advancing those who have been adversely affected by past discriminatory employment practices, even at the expense of other employees innocent of discrimination. Franks v. Bowman Transportation Co., 424 U. S. 747, 424 U. S. 767-768 (1976). Although Title VII clearly does not require employers to take action to remedy the disadvantages imposed upon racial minorities by hands other than their own, such an objective is perfectly consistent with the remedial goals of the statute. See id. at 424 U. S. 762-770; Albemarle Paper Co. v. Moody, 422 U. S. 405, 422 U. S. 418 (1975). There is no more indication in the legislative history of Title VII than in that of Title VI that Congress desired to prohibit such affirmative action to the extent that it is permitted by the Constitution, yet judicial decisions as well as subsequent executive and congressional action clearly establish that Title VII does not forbid race-conscious remedial action. See infra at 438 U. S. 353-355, and n. 28.[Footnote 2/18]HEW has stated that the purpose of these regulations is"to specify that affirmative steps to make services more equitably available are not prohibited and that such steps are required when necessary to overcome the consequences of prior discrimination."36 Fed.Reg. 23494 (1971). Other federal agencies which provide financial assistance pursuant to Title VI have adopted similar regulations. See Supplemental Brief for United States as Amicus Curiae 16 n. 14.[Footnote 2/19]Moreover, the President has delegated to the Attorney General responsibility for coordinating the enforcement of Title VI by federal departments and agencies, and has directed him to "assist the departments and agencies in accomplishing effective implementation." Exec.Order No. 11764, 3 CFR 849 (1971-1975 Comp.). Accordingly, the views of the Solicitor General, as well as those of HEW, that the use of racial preferences for remedial purposes is consistent with Title VI are entitled to considerable respect.[Footnote 2/20]HEW administers at least two explicitly race-conscious programs. Details concerning them may be found in the Office of Management and Budget, 1977 Catalogue of Federal Domestic Assistance 205-206, 401-402. The first program, No. 13.375, "Minority Biomedical Support," has as its objectives:"To increase the number of ethnic minority faculty, students, and investigators engaged in biomedical research. To broaden the opportunities for participation in biomedical research of ethnic minority faculty, students, and investigators by providing support for biomedical research programs at eligible institutions."Eligibility for grants under this program is limited to (1) four-year colleges, universities, and health professional schools with over 50% minority enrollments; (2) four-year institutions with significant but not necessarily over 50% minority enrollment provided they have a history of encouragement and assistance to minorities; (3) two-year colleges with 50% minority enrollment; and (4) American Indian Tribal Councils. Grants made pursuant to this program are estimated to total $9,711,000 for 1977.The second program, No. 13.880, entitled "Minority Access To Research Careers," has as its objective to "assist minority institutions to train greater numbers of scientists and teachers in health related fields." Grants under this program are made directly to individuals and to institutions for the purpose of enabling them to make grants to individuals.[Footnote 2/21]H.R.Conf.Rep. No. 9538, p. 22 (1977); 123 Cong.Rec. 26188 (1977). See H.J.Res. 662, 95th Cong., 1st Sess. (1977); Pub.L. 95-205, 91 Stat. 1460.[Footnote 2/22]91 Stat. 117, 42 U.S.C. § 6705(f)(2) (1976 ed.).[Footnote 2/23]123 Cong.Rec.7156 (1977); id. at 5327-5330.[Footnote 2/24]See id. at 7156 (Sen. Brooke).[Footnote 2/25]In addition to the enactment of the 10% quota provision discussed supra, Congress has also passed other Acts mandating race-conscious measures to overcome disadvantages experienced by racial minorities. Although these statutes have less direct bearing upon the meaning of Title VI, they do demonstrate that Congress believes race-conscious remedial measures to be both permissible and desirable under at least some circumstances. This, in turn, undercuts the likelihood that Congress intended to limit voluntary efforts to implement similar measures. For example, § 7(a) of the National Science Foundation Authorization Act, 1977, provides:"The Director of the National Science Foundation shall initiate an intensive search for qualified women, members of minority groups, and handicapped individuals to fill executive level positions in the National Science Foundation. In carrying out the requirement of this subsection, the Director shall work closely with organizations which have been active in seeking greater recognition and utilization of the scientific and technical capabilities of minorities, women, and handicapped individuals. The Director shall improve the representation of minorities, women, and handicapped individuals on advisory committees,, review panels, and all other mechanisms by which the scientific community provides assistance to the Foundation."90 Stat. 2056, note following 42 U.S.C. 1873 (1976 ed.). Perhaps more importantly, the Act also authorizes the funding of Minority Centers for Graduate Education. Section 7(C)(2) of the Act, 90 Stat. 2056, requires that these Centers:"(A) have substantial minority student enrollment;""(B) are geographically located near minority population centers;""(C) demonstrate a commitment to encouraging and assisting minority students, researchers, and faculty;""* * * *" "(F) will serve as a regional resource in science and engineering for the minority community which the Center is designed to serve; and""(G) will develop joint educational programs with nearby undergraduate institutions of higher education which have a substantial minority student enrollment."Once again, there is no indication in the legislative history of this Act or elsewhere that Congress saw any inconsistency between the race-conscious nature of such legislation and the meaning of Title VI. And, once again, it is unlikely in the extreme that a Congress which believed that it had commanded recipients of federal funds to be absolutely colorblind would itself expend federal funds in such a race-conscious manner. See also the Railroad Revitalization and Regulatory Reform Act of 1976, 45 U.S.C. § 801 et seq. (1976 ed.), 49 U.S.C. § 1657a et seq. (1976 ed.); the Emergency School Aid Act, 20 U.S.C. § 1601 et seq. (1976 ed.).[Footnote 2/26]Cf. Griggs v. Duke Power Co., 401 U. S. 424 (1971).[Footnote 2/27]Ibid.; Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975).[Footnote 2/28]Franks v. Bowman Transportation Co., 424 U. S. 747 (1976); Teamsters v. United States, 431 U. S. 324 (1977). Executive, judicial, and congressional action subsequent to the passage of Title VII conclusively established that the Title did not bar the remedial use of race. Prior to the 1972 amendments to Title VII (Equal Employment Opportunity Act of 1972, 86 Stat. 103), a number of Courts of Appeals approved race-conscious action to remedy the effects of employment discrimination. See, e.g., Heat & Frost Insulators & Asbestos Workers v. Voler, 407 F.2d 1047 (CA5 1969); United States v. Electrical Workers, 428 F.2d 144, 149-150 (CA6), cert. denied, 400 U.S. 943 (1970); United States v. Sheetmetal Workers, 416 F.2d 123 (CA8 1969). In 1965, the President issued Exec.Order No. 11246, 3 CFR 339 (1964-1965 Comp.), which, as amended by Exec.Order No. 11375, 3 CFR 684 (1966-1970 Comp.), required federal contractors to take affirmative action to remedy the disproportionately low employment of racial minorities in the construction industry. The Attorney General issued an opinion concluding that the race consciousness required by Exec Order No 11246 did not conflict with Title VII:"It is not correct to say that Title VII prohibits employers from making race or national origin a factor for consideration at any stage in the process of obtaining employees. The legal definition of discrimination is an evolving one, but it is now well recognized in judicial opinions that the obligation of nondiscrimination, whether imposed by statute or by the Constitution, does not require and, in some circumstances, may not permit, obliviousness or indifference to the racial consequences of alternative courses of action which involve the application of outwardly neutral criteria."42 Op.Atty.Gen. 405, 411 (1969). The federal courts agreed. See, e.g., Contractors Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (CA3), cert. denied, 404 U.S. 854 (1971) (which also held, 442 F.2d at 173, that race-conscious affirmative action was permissible under Title VI); Southern Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (CA7 1972). Moreover, Congress, in enacting the 1972 amendments to Title VII, explicitly considered and rejected proposals to alter Exec.Order No. 11246 and the prevailing judicial interpretations of Title VII as permitting, and in some circumstances requiring, race-conscious action. See Comment, The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U.Chi.L.Rev. 723, 747-757 (1972). The section-by-section analysis of the 1972 amendments to Title VII undertaken by the Conference Committee Report on H.R. 1746 reveals a resolve to accept the then (as now) prevailing judicial interpretations of the scope of Title VII:"In any area where the new law does not address itself, or in any areas where a specific contrary intent is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII."Legislative History of the Equal Employment Opportunity Act of 1972, p. 1844 (Comm.Print 1972).[Footnote 2/29]United Jewish Organizations v. Carey, 430 U. S. 144 (1977). See also id. at 430 U. S. 167-168 (opinion of WHITE, J.).[Footnote 2/30]We do not pause to debate whether our cases establish a "two-tier" analysis, a "sliding scale" analysis, or something else altogether. It is enough for present purposes that strict scrutiny is applied at least in some cases.[Footnote 2/31]Of course, the fact that whites constitute a political majority in our Nation does not necessarily mean that active judicial scrutiny of racial classifications that disadvantage whites is inappropriate. Cf. Castaneda v. Partida, 430 U. S. 482, 430 U. S. 499-500 (1977); id. at 430 U. S. 501 (MARSHALL, J., concurring) .[Footnote 2/32]"[T]he conclusion cannot be resisted, that no reason for [the refusal to issue permits to Chinese] exists except hostility to the race and nationality to which the petitioners belong. . . . The discrimination is, therefore, illegal. . . ."[Footnote 2/33]Indeed, even in Plessy v. Ferguson, the Court recognized that a classification by race that presumed one race to be inferior to another would have to be condemned. See 163 U.S. at 163 U. S. 544-551.[Footnote 2/34]Paradoxically, petitioner's argument is supported by the cases generally thought to establish the "strict scrutiny" standard in race cases, Hirabayashi v. United States, 320 U. S. 81 (1943), and Korematsu v. United States, 323 U. S. 214 (1944). In Hirabayashi, for example, the Court, responding to a claim that a racial classification was rational, sustained a racial classification solely on the basis of a conclusion in the double negative that it could not say that facts which might have been available "could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States." 320 U.S. at 320 U. S. 101. A similar mode of analysis was followed in Korematsu, see 323 U.S. at 323 U. S. 224, even though the Court stated there that racial classifications were "immediately suspect," and should be subject to "the most rigid scrutiny." Id. at 323 U. S. 216.[Footnote 2/35]We disagree with our Brother POWELL's suggestion, ante at 438 U. S. 303, that the presence of "rival groups which can claim that they, too, are entitled to preferential treatment" distinguishes the gender cases or is relevant to the question of scope of judicial review of race classifications. We are not asked to determine whether groups other than those favored by the Davis program should similarly be favored. All we are asked to do is to pronounce the constitutionality of what Davis has done.But, were we asked to decide whether any given rival group -- German-Americans for example -- must constitutionally be accorded preferential treatment, we do have a "principled basis," ante at 438 U. S. 296, for deciding this question, one that is well established in our cases: the Davis program expressly sets out four classes which receive preferred status. Ante at 438 U. S. 274. The program clearly distinguishes whites, but one cannot reason from this a conclusion that German-Americans, as a national group, are singled out for invidious treatment. And even if the Davis program had a differential impact on German-Americans, they would have no constitutional claim unless they could prove that Davis intended invidiously to discriminate against German-Americans. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 429 U. S. 264-265 (1977); Washington v. Davis, 426 U. S. 229, 426 U. S. 238-241 (1976). If this could not be shown, then "the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights . . . is inapplicable," Katzenbach v. Morgan, 384 U. S. 641, 384 U. S. 657 (1966), and the only question is whether it was rational for Davis to conclude that the groups it preferred had a greater claim to compensation than the groups it excluded. See ibid.; San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 411 U. S. 38-39 (1973) (applying Katzenbach test to state action intended to remove discrimination in educational opportunity). Thus, claims of rival groups, although they may create thorny political problems, create relatively simple problems for the courts.[Footnote 2/36]Gunther, The Supreme Court, 1971 Term -- Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972).[Footnote 2/37]In Albemarle, we approved "differential validation" of employment tests. See 422 U.S. at 422 U. S. 435. That procedure requires that an employer must ensure that a test score of, for example, 50 for a minority job applicant means the same thing as a score of 50 for a nonminority applicant. By implication, were it determined that a test score of 50 for a minority corresponded in "potential for employment" to a 60 for whites, the test could not be used consistently with Title VII unless the employer hired minorities with scores of 50 even though he might not hire nonminority applicants with scores above 50 but below 60. Thus, it is clear that employers, to ensure equal opportunity, may have to adopt race-conscious hiring practices.[Footnote 2/38]Indeed, Titles VI and VII of the Civil Rights Act of 1964 put great emphasis on voluntarism in remedial action. See supra at 438 U. S. 336-338. And, significantly, the Equal Employment Opportunity Commission has recently proposed guidelines authorizing employers to adopt racial preferences as a remedial measure where they have a reasonable basis for believing that they might otherwise be held in violation of Title VII. See 42 Fed.Reg. 64826 (1977).[Footnote 2/39]"[T]he [Voting Rights] Act's prohibition . . . is not dependent upon proving past unconstitutional apportionments. . . ."[Footnote 2/40]"[T]he State is [not] powerless to minimize the consequences of racial discrimination by voters when it is regularly practiced at the polls."[Footnote 2/41]Our cases cannot be distinguished by suggesting, as our Brother POWELL does, that in none of them was anyone deprived of "the relevant benefit." Ante at 438 U. S. 304. Our school cases have deprived whites of the neighborhood school of their choice; our Title VII cases have deprived nondiscriminating employees of their settled seniority expectations; and UJO deprived the Hassidim of bloc-voting strength. Each of these injuries was constitutionally cognizable as is respondent's here.[Footnote 2/42]We do not understand MR. JUSTICE POWELL to disagree that providing a remedy for past racial prejudice can constitute a compelling purpose sufficient to meet strict scrutiny. See ante at 438 U. S. 305. Yet, because petitioner is a corporation administering a university, he would not allow it to exercise such power in the absence of "judicial, legislative, or administrative findings of constitutional or statutory violations." Ante at 438 U. S. 307. While we agree that reversal in this case would follow a fortiori had Davis been guilty of invidious racial discrimination or if a federal statute mandated that universities refrain from applying any admissions policy that had a disparate and unjustified racial impact, see, e.g., McDaniel v. Barresi, 402 U. S. 39 (1971); Franks v. Bowman Transportation Co., 424 U. S. 747 (1976), we do not think it of constitutional significance that Davis has not been so adjudged.Generally, the manner in which a State chooses to delegate governmental functions is for it to decide. Cf. Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 256 (1957) (Frankfurter, J., concurring in result). California, by constitutional provision, has chosen to place authority over the operation of the University of California in the Board of Regents. See Cal.Const., Art. 9, § 9(a). Control over the University is to be found not in the legislature, but rather in the Regents who have been vested with full legislative (including policymaking), administrative, and adjudicative powers by the citizens of California. See ibid.; Ishimatsu v. Regents, 266 Cal. App. 2d 854, 863-864, 72 Cal. Rptr. 756, 762-763 (1968); Goldberg v. Regents, 248 Cal. App. 2d 867, 874, 57 Cal. Rptr. 463, 468 (1967); 30 Op.Cal.Atty. Gen. 162, 166 (1957) ("The Regents, not the legislature, have the general rulemaking or policymaking power in regard to the University"). This is certainly a permissible choice, see Sweezy, supra, and we, unlike our Brother POWELL, find nothing in the Equal Protection Clause that requires us to depart from established principle by limiting the scope of power the Regents may exercise more narrowly than the powers that may constitutionally be wielded by the Assembly.Because the Regents can exercise plenary legislative and administrative power, it elevates form over substance to insist that Davis could not use race-conscious remedial programs until it had been adjudged in violation of the Constitution or an antidiscrimination statute. For, if the Equal Protection Clause required such a violation as a predicate, the Regents could simply have promulgated a regulation prohibiting disparate treatment not justified by the need to admit only qualified students, and could have declared Davis to have been in violation of such a regulation on the basis of the exclusionary effect of the admissions policy applied during the first two years of its operation. See infra at 438 U. S. 370.[Footnote 2/43]"Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." Buckley v. Valeo, 424 U. S. 1, 424 U. S. 93 (1976) (per curiam), citing Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S. 638 n. 2 (1975).[Footnote 2/44]Railway Mail Assn. held that a state statute forbidding racial discrimination by certain labor organizations did not abridge the Association's due process rights secured by the Fourteenth Amendment, because that result"would be a distortion of the policy manifested in that amendment, which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color."326 U.S. at 326 U. S. 94. That case thus established the principle that a State voluntarily could go beyond what the Fourteenth Amendment required in eliminating private racial discrimination.[Footnote 2/45]According to 89 schools responding to a questionnaire sent to 112 medical schools (all of the then-accredited medical schools in the United States except Howard and Meharry), substantial efforts to admit minority students did not begin until 1968. That year was the earliest year of involvement for 34% of the schools; an additional 66% became involved during the years 1969 to 1973. See C. Odegaard, Minorities in Medicine: From Receptive Passivity to Positive Action, 1966-1976, p. 19 (1977) (hereinafter Odegaard). These efforts were reflected in a significant increase in the percentage of minority M.D. graduates. The number of American Negro graduates increased from 2.2% in 1970 to 3.3% in 1973 and 5.0% in 1975. Significant percentage increases in the number of Mexican-American, American Indian, and mainland Puerto Rican graduates were also recorded during those years. Id. at 40.The statistical information cited in this and the following notes was compiled by Government officials or medical educators, and has been brought to our attention in many of the briefs. Neither the parties nor the amici challenge the validity of the statistics alluded to in our discussion.[Footnote 2/46]D. Reitzes, Negroes and Medicine, pp. xxvii, 3 (1958).[Footnote 2/47]Between 1955 and 1964, for example, the percentage of Negro physicians graduated in the United States who were trained at these schools ranged from 69.0% to 75.8%. See Odegaard 19.[Footnote 2/48]U.S. Dept. of Health, Education, and Welfare, Minorities and Women in the Health Fields 7 (Pub. No. (HRA) 75-22, May, 1974).[Footnote 2/49]U.S. Dept. of Commerce, Bureau of the Census, 1970 Census, vol. 1, pt. 1, Table 60 (1973).[Footnote 2/50]See ante at 438 U. S. 276 n. 6 (opinion of POWELL, J.).[Footnote 2/51]See, e.g., R. Wade, Slavery in the Cities: The South 1820-1860, pp. 991 (1964).[Footnote 2/52]For an example of unequal facilities in California schools, see Sona v. Oxnard School Dist. Board, 386 F. Supp. 539, 542 (CD Cal.1974). See also R. Kluger, Simple Justice (1976).[Footnote 2/53]See, e.g., Crawford v. Board of Education, 17 Cal. 3d 280, 551 P.2d 28 (1976); Soria v. Oxnard School Dist. Board, supra; Spangler v. Pasadena City Board of Education, 311 F. Supp. 501 (CD Cal.1970); C. Wollenberg, All Deliberate Speed: Segregation and Exclusion in California Schools, 1855-1975, pp. 136-177 (1976).[Footnote 2/54]For example, over 40% of American-born Negro males aged 20 to 24 residing in California in 1970 were born in the South, and the statistic for females was over 48%. These statistics were computed from data contained in Census, supra, 438 U.S. 265fn2/49|>n. 49, pt. 6, California, Tables 139, 140.[Footnote 2/55]See, e.g., O'Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education, 80 Yale L.J. 699, 729-731 (1971).[Footnote 2/56]Congress and the Executive have also adopted a series of race-conscious programs, each predicated on an understanding that equal opportunity cannot be achieved by neutrality, because of the effects of past and present discrimination. See supra at 438 U. S. 348-349.[Footnote 2/57]Negroes and Chicanos alone constitute approximately 22% of California's population. This percentage was computed from data contained in Census, supra, 438 U.S. 265fn2/49|>n. 49, pt. 6, California, sec. 1,6-4, and Table 139.[Footnote 2/58]The constitutionality of the special admissions program is buttressed by its restriction to only 16% of the positions in the Medical School, a percentage less than that of the minority population in California, see ibid., and to those minority applicants deemed qualified for admission and deemed likely to contribute to the Medical School and the medical profession. Record 67. This is consistent with the goal of putting minority applicants in the position they would have ben in if not for the evil of racial discrimination. Accordingly, this case does not raise the question whether even a remedial use of race would be unconstitutional if it admitted unqualified minority applicants in preference to qualified applicants or admitted, as a result of preferential consideration, racial minorities in numbers significantly in excess of their proportional representation in the relevant population. Such programs might well be inadequately justified by the legitimate remedial objectives. Our allusion to the proportional percentage of minorities in the population of the State administering the program is not intended to establish either that figure or that population universe as a constitutional benchmark. In this case, even respondent, as we understand him, does not argue that, if the special admissions program is otherwise constitutional, the allotment of 16 places in each entering class for special admittees is unconstitutionally high.[Footnote 2/59]See Census, supra, 438 U.S. 265fn2/49|>n. 49, Sources and Structure of Family Income, pp. 1-12.[Footnote 2/60]This percentage was computed from data presented in B. Waldman, Economic and Racial Disadvantage as Reflected in Traditional Medical School Selection Factors: A Study of 1976 Applicants to U.S. Medical Schools 34 (Table A-15), 42 (Table A-23) (Association of American Medical Colleges 1977).[Footnote 2/61]This figure was computed from data contained in Census, supra, 438 U.S. 265fn2/49|>n. 49, pt. 1, United States Summary, Table 209.[Footnote 2/62]See Waldman, supra, 438 U.S. 265fn2/60|>n. 60, at 10-14 (Figures 1-5).[Footnote 2/63]The excluded white applicant, despite MR. JUSTICE POWELL's contention to the contrary, ante at 438 U. S. 318 n. 52, receives no more or less "individualized consideration" under our approach than under his.MR. JUSTICE WHITE.I write separately concerning the question of whether Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., provides for a private cause of action. Four Justices are apparently of the view that such a private cause of action Page 438 U. S. 380 exists, and four Justices assume it for purposes of this case. I am unwilling merely to assume an affirmative answer. If, in fact, no private cause of action exists, this Court and the lower courts as well are without jurisdiction to consider respondent's Title VI claim. As I see it, if we are not obliged to do so, it is at least advisable to address this threshold jurisdictional issue. See United States v. Griffin, 303 U. S. 226, 303 U. S. 229 (1938). [Footnote 3/1] Furthermore, just as it is inappropriate to address constitutional issues without determining whether statutory grounds urged before us are dispositive, it is at least questionable practice to adjudicate a novel and difficult statutory issue without first considering whether we have jurisdiction to decide it. Consequently, I address the question of whether respondent may bring suit under Title VI.A private cause of action under Title VI, in terms both of Page 438 U. S. 381 the Civil Rights Act as a whole and that Title, would not be "consistent with the underlying purposes of the legislative scheme," and would be contrary to the legislative intent. Cort v. Ash, 422 U. S. 66, 422 U. S. 78 (1975). Title II, 42 U.S.C. § 2000a et seq., dealing with public accommodations, and Title VII, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), dealing with employment, proscribe private discriminatory conduct that, as of 1964, neither the Constitution nor other federal statutes had been construed to forbid. Both Titles carefully provided for private actions as well as for official participation in enforcement. Title III, 42 U.S.C. § 2000b et seq., and Title IV, 42 U.S.C. § 2000c et seq. (1970 ed and Supp. V), dealing with public facilities and public education, respectively, authorize suits by the Attorney General to eliminate racial discrimination in these areas. Because suits to end discrimination in public facilities and public education were already available under 42 U.S.C. § 1983, it was, of course, unnecessary to provide for private actions under Titles III and IV. But each Title carefully provided that its provisions for public actions would not adversely affect preexisting private remedies. § § 2000b-2 and 2000c-8.The role of Title VI was to terminate federal financial support for public and private institutions or programs that discriminated on the basis of race. Section 601, 42 U.S.C. § 2000d, imposed the proscription that no person, on the grounds of race, color, or national origin, was to be excluded from or discriminated against under any program or activity receiving federal financial assistance. But there is no express provision for private actions to enforce Title VI, and it would be quite incredible if Congress, after so carefully attending to the matter of private actions in other Titles of the Act, intended silently to create a private cause of action to enforce Title VI.It is also evident from the face of § 602, 42 U.S.C. § 2000d-1, that Congress intended the departments and agencies Page 438 U. S. 382 to define and to refine, by rule or regulation, the general proscription of § 601, subject only to judicial review of agency action in accordance with established procedures. Section 602 provides for enforcement: every federal department or agency furnishing financial support is to implement the proscription by appropriate rule or regulation, each of which requires approval by the President. Termination of funding as a sanction for noncompliance is authorized, but only after a hearing and after the failure of voluntary means to secure compliance. Moreover, termination may not take place until the department or agency involved files with the appropriate committees of the House and Senate a full written report of the circumstances and the grounds for such action and 30 days have elapsed thereafter. Judicial review was provided, at least for actions terminating financial assistance.Termination of funding was regarded by Congress as a serious enforcement step, and the legislative history is replete with assurances that it would not occur until every possibility for conciliation had been exhausted. [Footnote 3/2] To allow a private Page 438 U. S. 383 individual to sue to cut off funds under Title VI would compromise these assurances and short-circuit the procedural preconditions provided in Title VI. If the Federal Government may not cut off funds except pursuant to an agency rule, approved by the President, and presented to the appropriate committee of Congress for a layover period, and after voluntary means to achieve compliance have failed, it is inconceivable that Congress intended to permit individuals to circumvent these administrative prerequisites themselves.Furthermore, although Congress intended Title VI to end federal financial support for racially discriminatory policies of not only public but also private institutions and programs, it is extremely unlikely that Congress, without a word indicating that it intended to do so, contemplated creating an independent, private statutory cause of action against all private, as well as public, agencies that might be in violation of the section. There is no doubt that Congress regarded private litigation as an important tool to attack discriminatory practices. It does not at all follow, however, that Congress anticipated new private actions under Title VI itself. Wherever a discriminatory program was a public undertaking, such as a public school, private remedies were already available under other statutes, and a private remedy under Title VI was Page 438 U. S. 384 unnecessary. Congress was well aware of this fact. Significantly, there was frequent reference to Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 059 (CA4 1963), cert. denied, 376 U.S. 938 (1964), throughout the congressional deliberations. See, e.g., 110 Cong.Rec. 654 (1964) (Sen. Humphrey). Simkins held that, under appropriate circumstances, the operation of a private hospital with "massive use of public funds and extensive state-federal sharing in the common plan" constituted "state action" for the purposes of the Fourteenth Amendment. 323 F.2d at 967. It was unnecessary, of course, to create a Title VI private action against private discriminators where they were already within the reach of existing private remedies. But when they were not -- and Simkins carefully disclaimed holding that "every subvention by the federal or state government automatically involves the beneficiary in state action,'" ibid. [Footnote 3/3] -- it is difficult Page 438 U. S. 385 to believe that Congress silently created a private remedy to terminate conduct that previously had been entirely beyond the reach of federal law.For those who believe, contrary to my views, that Title VI was intended to create a stricter standard of colorblindness than the Constitution itself requires, the result of no private cause of action follows even more readily. In that case, Congress must be seen to have banned degrees of discrimination, as well as types of discriminators, not previously reached by law. A Congress careful enough to provide that existing private causes of action would be preserved (in Titles III and IV) would not leave for inference a vast new extension of private enforcement power. And a Congress so exceptionally concerned with the satisfaction of procedural preliminaries before confronting fund recipients with the choice of a cutoff or of stopping discriminating would not permit private parties to pose precisely that same dilemma in a greatly widened category of cases with no procedural requirements whatsoever.Significantly, in at least three instances, legislators who played a major role in the passage of Title VI explicitly stated that a private right of action under Title VI does not exist. [Footnote 3/4] Page 438 U. S. 386 As an "indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one," Cort v. Ash, 422 U.S. at 422 U. S. 78, clearer statements cannot be imagined, and under Cort, "an explicit purpose to deny such cause of action [is] controlling." Id. at 422 U. S. 82. Senator Keating, for example, proposed a private "right to sue" for the "person suffering from discrimination"; but the Department of Justice refused to include it, and the Senator acquiesced. [Footnote 3/5] These are not neutral, ambiguous statements. They indicate the absence of a legislative intent to create a private remedy. Nor do any of these statements make nice distinctions between a private cause of action to enjoin discrimination and one to cut off funds, as MR. JUSTICE STEVENS and the three Justices who join his opinion apparently would. See post at 438 U. S. 419-420, n. 26. Indeed, it would be odd if they did, since the practical effect of either type of private cause of action would be identical. If private suits to enjoin conduct allegedly violative of § 601 were permitted, recipients of federal funds would be presented with the choice of either ending what the court, rather than the agency, determined to be a discriminatory practice within the meaning of Title VI or refusing federal funds, and thereby escaping from the statute's jurisdictional predicate. [Footnote 3/6] This is precisely the same choice as would confront recipients if suit were brought to cut off funds. Both types of actions would equally jeopardize the administrative processes so carefully structured into the law. Page 438 U. S. 387This Court has always required"that the inference of such a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent and, of course, with the effectuation of the purposes intended to be served by the Act."National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U. S. 453, 414 U. S. 458 (1974). See also Securities Investor Protection Corp. v. Barbour, 421 U. S. 412, 421 U. S. 418 420 (1975). A private cause of action under Title VI is unable to satisfy either prong of this test.Because each of my colleagues either has a different view or assumes a private cause of action, however, the merits of the Title VI issue must be addressed. My views in that regard, as well as my views with respect to the equal protection issue, are included in the joint opinion that my Brothers BRENNAN, MARSHALL, and BLACKMUN and I have filed. [Footnote 3/7][Footnote 3/1]It is also clear from Griffin that "lack of jurisdiction . . . touching the subject matter of the litigation cannot be waived by the parties. . . ." 303 U.S. at 303 U. S. 229. See also Mount Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 429 U. S. 278 (1977); Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 211 U. S. 152 (1908); Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 111 U. S. 382 (1884).In Lau v. Nichols, 414 U. S. 563 (1974), we did adjudicate a Title VI claim brought by a class of individuals. But the existence of a private cause of action was not at issue. In addition, the understanding of MR. JUSTICE STEWART's concurring opinion, which observed that standing was not being contested, was that the standing alleged by petitioners was as third-party beneficiaries of the funding contract between the Department of Health, Education, and Welfare and the San Francisco United School District, a theory not alleged by the present respondent. Id. at 414 U. S. 571 n. 2. Furthermore, the plaintiffs in Lau alleged jurisdiction under 42 U.S.C. § 1983, rather than directly under the provisions of Title VI, as does the plaintiff in this case. Although the Court undoubtedly had an obligation to consider the jurisdictional question, this is surely not the first instance in which the Court has bypassed a jurisdictional problem not presented by the parties. Certainly the Court's silence on the jurisdictional question, when considered in the context of the indifference of the litigants to it and the fact that jurisdiction was alleged under § 1983, does not foreclose a reasoned conclusion that Title VI affords no private cause of action.[Footnote 3/2]"Yet, before that principle [that 'Federal funds are not to be used to support racial discrimination'] is implemented to the detriment of any person, agency, or State, regulations giving notice of what conduct is required must be drawn up by the agency administering the program. . . . Before such regulations become effective, they must be submitted to and approved by the President.""Once having become effective, there is still a long road to travel before any sanction whatsoever is imposed. Formal action to compel compliance can only take place after the following has occurred: first, there must be an unsuccessful attempt to obtain voluntary compliance; second, there must be an administrative hearing; third, a written report of the circumstances and the grounds for such action must be filed with the appropriate committees of the House and Senate; and fourth, 30 days must have elapsed between such filing and the action denying benefits under a Federal program. Finally, even that action is by no means final, because it is subject to judicial review, and can be further postponed by judicial action granting temporary relief pending review in order to avoid irreparable injury. It would be difficult indeed to concoct any additional safeguards to incorporate in such a procedure."110 Cong.Rec. 6749 (1964) (Sen. Moss)."[T]he authority to cut off funds is hedged about with a number of procedural restrictions. . . . [There follow details of the preliminary steps.]""In short, title VI is a reasonable, moderate, cautious, carefully worked out solution to a situation that clearly calls for legislative action."Id. at 6544 (Sen. Humphrey)."Actually, no action whatsoever can be taken against anyone until the Federal agency involved has advised the appropriate person of his failure to comply with nondiscrimination requirements and until voluntary efforts to secure compliance have failed."Id. at 1519 (Rep. Celler) (emphasis added). See also remarks of Sen. Ribicoff (id. at 7066-7067); Sen. Proxmire (id. at 8345); en. Kuchel (id. at 6562). These safeguards were incorporated into 42 U.S.C. § 2000d-1.[Footnote 3/3]This Court has never held that the mere receipt of federal or state funds is sufficient to make the recipient a federal or state actor. In Norwood v. Harrison, 413 U. S. 455 (1973), private schools that received state aid were held subject to the Fourteenth Amendment's ban on discrimination, but the Court's test required "tangible financial aid" with a "significant tendency to facilitate, reinforce, and support private discrimination." Id. at 413 U. S. 466. The mandate of Burton v. Wilmington Parking Authority, 365 U. S. 715, 365 U. S. 722 (1961), to sift facts and weigh circumstances of governmental support in each case to determine whether private or state action was involved, has not been abandoned for an automatic rule based on receipt of funds.Contemporaneous with the congressional debates on the Civil Rights Act was this Court's decision in Griffin v. School Board, 377 U. S. 218 (1964). Tuition grants and tax concessions were provided for parents of students in private schools which discriminated racially. The Court found sufficient state action, but carefully limited its holding to the circumstances presented:"[C]losing the Prince Edward schools and meanwhile contributing to the support of the private segregated white schools that took their place denied petitioners the equal protection of the laws."Id. at 377 U. S. 232.Hence, neither at the time of the enactment of Title VI nor at the present time, to the extent this Court has spoken, has mere receipt of state funds created state action. Moreover, Simkins has not met with universal approval among the United States Courts of Appeals. See cases cited in Greco v. Orange Memorial Hospital Corp., 423 U. S. 1000, 1004 (1975) (WHITE, J., dissenting from denial of certiorari).[Footnote 3/4]"Nowhere in this section do you find a comparable right of legal action for a person who feels he has been denied his rights to participate in the benefits of Federal funds. Nowhere. Only those who have been cut off can go to court and present their claim."110 Cong.Rec. 2467 (1964) (Rep. Gill)."[A] good case could be made that a remedy is provided for the State or local official who is practicing discrimination, but none is provided for the victim of the discrimination."Id. at 6562 (Sen. Kuchel)."Parenthetically, while we favored the inclusion of the right to sue on the part of the agency, the State, or the facility which was deprived of Federal funds, we also favored the inclusion of a provision granting the right to sue to the person suffering from discrimination. This was not included in the bill. However, both the Senator from Connecticut and I are grateful that our other suggestions were adopted by the Justice Department."Id. at 7065 (Sen. Keating).[Footnote 3/5]Ibid.[Footnote 3/6]As Senator Ribicoff stated:"Sometimes those eligible for Federal assistance may elect to reject such aid, unwilling to agree to a nondiscrimination requirement. If they choose that course, the responsibility is theirs."Id. at 7067.[Footnote 3/7]I also join Parts I, III-A, and V-C of MR. JUSTICE POWELL's opinion.MR. JUSTICE MARSHALL.I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that petitioner's admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.IAThree hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, Page 438 U. S. 388 the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave. [Footnote 4/1]The denial of human rights was etched into the American Colonies' first attempts at establishing self-government. When the colonists determined to seek their independence from England, they drafted a unique document cataloguing their grievances against the King and proclaiming as "self-evident" that "all men are created equal" and are endowed "with certain unalienable Rights," including those to "Life, Liberty and the pursuit of Happiness." The self-evident truths and the unalienable rights were intended, however, to apply only to white men. An earlier draft of the Declaration of Independence, submitted by Thomas Jefferson to the Continental Congress, had included among the charges against the King that"[h]e has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither."Franklin 88. The Southern delegation insisted that the charge be deleted; the colonists themselves were implicated in the slave trade, and inclusion of this claim might have made it more difficult to justify the continuation of slavery once the ties to England were severed. Thus, even as the colonists embarked on a Page 438 U. S. 389 course to secure their own freedom and equality, they ensured perpetuation of the system that deprived a whole race of those rights.The implicit protection of slavery embodied in the Declaration of Independence was made explicit in the Constitution, which treated a slave as being equivalent to three-fifths of a person for purposes of apportioning representatives and taxes among the States. Art. I, § 2. The Constitution also contained a clause ensuring that the "Migration or Importation" of slaves into the existing States would be legal until at least 1808, Art. I, § 9, and a fugitive slave clause requiring that, when a slave escaped to another State, he must be returned on the claim of the master, Art. IV, § 2. In their declaration of the principles that were to provide the cornerstone of the new Nation, therefore, the Framers made it plain that "we the people," for whose protection the Constitution was designed, did not include those whose skins were the wrong color. As Professor John Hope Franklin has observed, Americans"proudly accepted the challenge and responsibility of their new political freedom by establishing the machinery and safeguards that insured the continued enslavement of blacks."Franklin 100.The individual States likewise established the machinery to protect the system of slavery through the promulgation of the Slave Codes, which were designed primarily to defend the property interest of the owner in his slave. The position of the Negro slave as mere property was confirmed by this Court in Dred Scott v. Sandford, 19 How. 393 (1857), holding that the Missouri Compromise -- which prohibited slavery in the portion of the Louisiana Purchase Territory north of Missouri -- was unconstitutional because it deprived slave owners of their property without due process. The Court declared that, under the Constitution, a slave was property, and "[t]he right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United Page 438 U. S. 390 States. . . ." Id. at 60 U. S. 451. The Court further concluded that Negroes were not intended to be included as citizens under the Constitution, but were"regarded as beings of an inferior order . . . altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect . . . ."Id. at 60 U. S. 407.BThe status of the Negro as property was officially erased by his emancipation at the end of the Civil War. But the long-awaited emancipation, while freeing the Negro from slavery, did not bring him citizenship or equality in any meaningful way. Slavery was replaced by a system of"laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value."Slaughter-House Cases, 16 Wall. 36, 83 U. S. 70 (1873). Despite the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, the Negro was systematically denied the rights those Amendments were supposed to secure. The combined actions and inactions of the State and Federal Governments maintained Negroes in a position of legal inferiority for another century after the Civil War.The Southern States took the first steps to reenslave the Negroes. Immediately following the end of the Civil War, many of the provisional legislatures passed Black Codes, similar to the Slave Codes, which, among other things, limited the rights of Negroes to own or rent property and permitted imprisonment for breach of employment contracts. Over the next several decades, the South managed to disenfranchise the Negroes in spite of the Fifteenth Amendment by various techniques, including poll taxes, deliberately complicated balloting processes, property and literacy qualifications, and, finally, the white primary.Congress responded to the legal disabilities being imposed Page 438 U. S. 391 in the Southern States by passing the Reconstruction Acts and the Civil Rights Acts. Congress also responded to the needs of the Negroes at the end of the Civil War by establishing the Bureau of Refugees, Freedmen, and Abandoned Lands, better known as the Freedmen's Bureau, to supply food, hospitals, land, and education to the newly freed slaves. Thus, for a time, it seemed as if the Negro might be protected from the continued denial of his civil rights, and might be relieved of the disabilities that prevented him from taking his place as a free and equal citizen.That time, however, was short-lived. Reconstruction came to a close, and, with the assistance of this Court, the Negro was rapidly stripped of his new civil rights. In the words of C. Vann Woodward:"By narrow and ingenious interpretation [the Supreme Court's] decisions over a period of years had whittled away a great part of the authority presumably given the government for protection of civil rights."Woodward 139.The Court began by interpreting the Civil War Amendments in a manner that sharply curtailed their substantive protections. See, e.g., Slaughter-House Cases, supra; United States v. Reese, 92 U. S. 214 (1876); United States v. Cruikshank, 92 U. S. 542 (1876). Then, in the notorious Civil Rights Cases, 109 U. S. 3 (1883), the Court strangled Congress' efforts to use its power to promote racial equality. In those cases, the Court invalidated sections of the Civil Rights Act of 1875 that made it a crime to deny equal access to "inns, public conveyances, theatres and other places of public amusement." Id. at 109 U. S. 10. According to the Court, the Fourteenth Amendment gave Congress the power to proscribe only discriminatory action by the State. The Court ruled that the Negroes who were excluded from public places suffered only an invasion of their social rights at the hands of private individuals, and Congress had no power to remedy that. Id. at 109 U. S. 24-25."When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that Page 438 U. S. 392 state,"the Court concluded,"there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws. . . ."Id. at 109 U. S. 25. As Mr. Justice Harlan noted in dissent, however, the Civil War Amendments and Civil Rights Acts did not make the Negroes the "special favorite" of the laws, but instead"sought to accomplish in reference to that race . . . -- what had already been done in every State of the Union for the white race -- to secure and protect rights belonging to them as freemen and citizens; nothing more."Id. at 109 U. S. 61.The Court's ultimate blow to the Civil War Amendments and to the equality of Negroes came in Plessy v. Ferguson, 163 U. S. 537 (1896). In upholding a Louisiana law that required railway companies to provide "equal but separate" accommodations for whites and Negroes, the Court held that the Fourteenth Amendment was not intended"to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either."Id. at 163 U. S. 544. Ignoring totally the realities of the positions of the two races, the Court remarked:"We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."Id. at 163 U. S. 551.Mr. Justice Harlan's dissenting opinion recognized the bankruptcy of the Court's reasoning. He noted that the "real meaning" of the legislation was "that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens." Id. at 163 U. S. 560. He expressed his fear that, if like laws were enacted in other Page 438 U. S. 393 States, "the effect would be in the highest degree mischievous." Id. at 163 U. S. 563. Although slavery would have disappeared, the States would retain the power"to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens. . . ."Ibid.The fears of Mr. Justice Harlan were soon to be realized. In the wake of Plessy, many States expanded their Jim Crow laws, which had, up until that time, been limited primarily to passenger trains and schools. The segregation of the races was extended to residential areas, parks, hospitals, theaters, waiting rooms, and bathrooms. There were even statutes and ordinances which authorized separate phone booths for Negroes and whites, which required that textbooks used by children of one race be kept separate from those used by the other, and which required that Negro and white prostitutes be kept in separate districts. In 1898, after Plessy, the Charlestown News and Courier printed a parody of Jim Crow laws:"'If there must be Jim Crow cars on the railroads, there should be Jim Crow cars on the street railways. Also on all passenger boats. . . . If there are to be Jim Crow cars, moreover, there should be Jim Crow waiting saloons at all stations, and Jim Crow eating houses. . . . There should be Jim Crow sections of the jury box, and a separate Jim Crow dock and witness stand in every court -- and a Jim Crow Bible for colored witnesses to kiss.'"Woodward 68. The irony is that, before many years had passed, with the exception of the Jim Crow witness stand,"all the improbable applications of the principle suggested by the editor in derision had been put into practice -- down to and including the Jim Crow Bible."Id. at 69.Nor were the laws restricting the rights of Negroes limited Page 438 U. S. 394 solely to the Southern States. In many of the Northern States, the Negro was denied the right to vote, prevented from serving on juries, and excluded from theaters, restaurants, hotels, and inns. Under President Wilson, the Federal Government began to require segregation in Government buildings; desks of Negro employees were curtained off; separate bathrooms and separate tables in the cafeterias were provided; and even the galleries of the Congress were segregated. When his segregationist policies were attacked, President Wilson responded that segregation was "not humiliating, but a benefit,'" and that he was "`rendering [the Negroes] more safe in their possession of office, and less likely to be discriminated against.'" Kluger 91.The enforced segregation of the races continued into the middle of the 20th century. In both World Wars, Negroes were, for the most part, confined to separate military units; it was not until 1948 that an end to segregation in the military was ordered by President Truman. And the history of the exclusion of Negro children from white public schools is too well known and recent to require repeating here. That Negroes were deliberately excluded from public graduate and professional schools -- and thereby denied the opportunity to become doctors, lawyers, engineers, and the like is also well established. It is, of course, true that some of the Jim Crow laws (which the decisions of this Court had helped to foster) were struck down by this Court in a series of decisions leading up to Brown v. Board of Education, 347 U. S. 483 (1954). See, e.g., Morgan v. Virginia, 328 U. S. 373 (1946); Sweatt v. Painter, 339 U. S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950). Those decisions, however, did not automatically end segregation, nor did they move Negroes from a position of legal inferiority to one of equality. The legacy of years of slavery and of years of second-class citizenship in the wake of emancipation could not be so easily eliminated. Page 438 U. S. 395IIThe position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.A Negro child today has a life expectancy which is shorter by more than five years than that of a white child. [Footnote 4/2] The Negro child's mother is over three times more likely to die of complications in childbirth, [Footnote 4/3] and the infant mortality rate for Negroes is nearly twice that for whites. [Footnote 4/4] The median income of the Negro family is only 60% that of the median of a white family, [Footnote 4/5] and the percentage of Negroes who live in families with incomes below the poverty line is nearly four times greater than that of whites. [Footnote 4/6]When the Negro child reaches working age, he finds that America offers him significantly less than it offers his white counterpart. For Negro adults, the unemployment rate is twice that of whites, [Footnote 4/7] and the unemployment rate for Negro teenagers is nearly three times that of white teenagers. [Footnote 4/8] A Negro male who completes four years of college can expect a median annual income of merely $110 more than a white male who has only a high school diploma. [Footnote 4/9] Although Negroes Page 438 U. S. 396 represent 11.5% of the population, [Footnote 4/10] they are only 1.2% of the lawyers and judges, 2% of the physicians, 2.3% of the dentists, 1.1% of the engineers and 2.6% of the college and university professors. [Footnote 4/11]The relationship between those figures and the history of unequal treatment afforded to the Negro cannot be denied. At every point from birth to death, the impact of the past is reflected in the still disfavored position of the Negro.In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society.IIII do not believe that the Fourteenth Amendment requires us to accept that fate. Neither its history nor our past cases lend any support to the conclusion that a university may not remedy the cumulative effects of society's discrimination by giving consideration to race in an effort to increase the number and percentage of Negro doctors.AThis Court long ago remarked that"in any fair and just construction of any section or phrase of these [Civil War] amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy. . . ."Slaughter-House Cases, 16 Wall. at 83 U. S. 72. It is plain that the Fourteenth Amendment was not intended to prohibit measures designed to remedy the effects of the Page 438 U. S. 397 Nation's past treatment of Negroes. The Congress that passed the Fourteenth Amendment is the same Congress that passed the 1866 Freedmen's Bureau Act, an Act that provided many of its benefits only to Negroes. Act of July 16, 1866, ch. 200, 14 Stat. 173; see supra at 438 U. S. 391. Although the Freedmen's Bureau legislation provided aid for refugees, thereby including white persons within some of the relief measures, 14 Stat. 174; see also Act of Mar. 3, 1865, ch. 90, 13 Stat. 507, the bill was regarded, to the dismay of many Congressmen, as "solely and entirely for the freedmen, and to the exclusion of all other persons. . . ." Cong.Globe, 39th Cong., 1st Sess., 544 (1866) (remarks of Rep. Taylor). See also id. at 634-635 (remarks of Rep. Ritter); id. at App. 78, 80-81 (remarks of Rep. Chandler). Indeed, the bill was bitterly opposed on the ground that it "undertakes to make the negro in some respects . . . superior . . . , and gives them favors that the poor white boy in the North cannot get." Id. at 401 (remarks of Sen. McDougall). See also id. at 319 (remarks of Sen. Hendricks); id. at 362 (remarks of Sen. Saulsbury); id. at 397 (remarks of Sen. Willey); id. at 544 (remarks of Rep. Taylor). The bill's supporters defended it not by rebutting the claim of special treatment, but by pointing to the need for such treatment:"The very discrimination it makes between 'destitute and suffering' negroes and destitute and suffering white paupers proceeds upon the distinction that, in the omitted case, civil rights and immunities are already sufficiently protected by the possession of political power, the absence of which in the case provided for necessitates governmental protection."Id. at App. 75 (remarks of Rep. Phelps) .Despite the objection to the special treatment the bill would provide for Negroes, it was passed by Congress. Id. at 421, 688. President Johnson vetoed this bill, and also a subsequent bill that contained some modifications; one of his principal Page 438 U. S. 398 objections to both bills was that they gave special benefits to Negroes. 8 Messages and Papers of the Presidents 3596, 3599, 3620, 3623 (1897). Rejecting the concerns of the President and the bill's opponents, Congress overrode the President's second veto. Cong.Globe, 39th Cong., 1st Sess., 3842, 3850 (1866).Since the Congress that considered and rejected the objections to the 1866 Freedmen's Bureau Act concerning special relief to Negroes also proposed the Fourteenth Amendment, it is inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief measures. It"would be a distortion of the policy manifested in that amendment, which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color,"Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 94 (1945), to hold that it barred state action to remedy the effects of that discrimination. Such a result would pervert the intent of the Framers by substituting abstract equality for the genuine equality the Amendment was intended to achieve.BAs has been demonstrated in our joint opinion, this Court's past cases establish the constitutionality of race-conscious remedial measures. Beginning with the school desegregation cases, we recognized that, even absent a judicial or legislative finding of constitutional violation, a school board constitutionally could consider the race of students in making school assignment decisions. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 402 U. S. 16 (1971); McDaniel v. Barresi, 402 U. S. 39, 402 U. S. 41 (1971). We noted, moreover, that a"flat prohibition against assignment of students for the purpose of creating a racial balance must inevitably conflict with the duty of school authorities to disestablish dual school systems. As we have held in Swann, the Constitution does not compel any particular degree of Page 438 U. S. 399 racial balance or mixing, but when past and continuing constitutional violations are found, some ratios are likely to be useful as starting points in shaping a remedy. An absolute prohibition against use of such a device -- even as a starting point -- contravenes the implicit command of Green v. County School Board, 391 U. S. 430 (1968), that all reasonable methods be available to formulate an effective remedy."Board of Education v. Swann, 402 U. S. 43, 402 U. S. 46 (1971). As we have observed, "[a]ny other approach would freeze the status quo that is the very target of all desegregation processes." McDaniel v. Barresi, supra at 402 U. S. 41.Only last Term, in United Jewish Organizations v. Carey, 430 U. S. 144 (1977), we upheld a New York reapportionment plan that was deliberately drawn on the basis of race to enhance the electoral power of Negroes and Puerto Ricans; the plan had the effect of diluting the electoral strength of the Hasidic Jewish community. We were willing in UJO to sanction the remedial use of a racial classification even though it disadvantaged otherwise "innocent" individuals. In another case last Term, Califano v. Webster, 430 U. S. 313 (1977), the Court upheld a provision in the Social Security laws that discriminated against men because its purpose was "the permissible one of redressing our society's longstanding disparate treatment of women.'" Id. at 430 U. S. 317, quoting Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 209 n. 8 (1977) (plurality opinion). We thus recognized the permissibility of remedying past societal discrimination through the use of otherwise disfavored classifications.Nothing in those cases suggests that a university cannot similarly act to remedy past discrimination. [Footnote 4/12] It is true that, Page 438 U. S. 400 in both UJO and Webster, the use of the disfavored classification was predicated on legislative or administrative action, but in neither case had those bodies made findings that there had been constitutional violations or that the specific individuals to be benefited had actually been the victims of discrimination. Rather, the classification in each of those cases was based on a determination that the group was in need of the remedy because of some type of past discrimination. There is thus ample support for the conclusion that a university can employ race-conscious measures to remedy past societal discrimination without the need for a finding that those benefited were actually victims of that discrimination.IVWhile I applaud the judgment of the Court that a university may consider race in its admissions process, it is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible. In declining to so hold, today's judgment ignores the fact that. for several hundred years, Negroes have been discriminated against not as individuals, but rather solely because of the color of their skins. It is unnecessary in 20th-century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact. The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone, but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has Page 438 U. S. 401 not been realized for the Negro; because of his skin color, he never even made it into the pot.These differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination. In the Civil Rights Cases, supra, the Court wrote that the Negro emerging from slavery must cease "to be the special favorite of the laws." 109 U.S. at 109 U. S. 25; see supra at 438 U. S. 392. We cannot, in light of the history of the last century, yield to that view. Had the Court, in that decision and others, been willing to"do for human liberty and the fundamental rights of American citizenship what it did . . . for the protection of slavery and the rights of the masters of fugitive slaves,"109 U.S. at 109 U. S. 53 (Harlan, J., dissenting), we would not need now to permit the recognition of any "special wards."Most importantly, had the Court been willing in 1896, in Plessy v. Ferguson, to hold that the Equal Protection Clause forbids differences in treatment based on race, we would not be faced with this dilemma in 1978. We must remember, however, that the principle that the "Constitution is colorblind" appeared only in the opinion of the lone dissenter. 163 U.S. at 163 U. S. 559. The majority of the Court rejected the principle of color blindness, and for the next 60 years, from Plessy to Brown v. Board of Education, ours was a Nation where, by law, an individual could be given "special" treatment based on the color of his skin.It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him or her, we must be willing Page 438 U. S. 402 to take steps to open those doors. I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible.It has been said that this case involves only the individual, Bakke, and this University. I doubt, however, that there is a computer capable of determining the number of persons and institutions that may be affected by the decision in this case. For example, we are told by the Attorney General of the United States that at least 27 federal agencies have adopted regulations requiring recipients of federal funds to take"'affirmative action to overcome the effects of conditions which resulted in limiting participation . . . by persons of a particular race, color, or national origin.'"Supplemental Brief for United States as Amicus Curiae 16 (emphasis added). I cannot even guess the number of state and local governments that have set up affirmative action programs, which may be affected by today's decision.I fear that we have come full circle. After the Civil War, our Government started several "affirmative action" programs. This Court, in the Civil Rights Cases and Plessy v. Ferguson, destroyed the movement toward complete equality. For almost a century, no action was taken, and this nonaction was with the tacit approval of the courts. Then we had Brown v. Board of Education and the Civil Rights Acts of Congress, followed by numerous affirmative action programs. Now, we have this Court again stepping in, this time to stop affirmative action programs of the type used by the University of California.[Footnote 4/1]The history recounted here is perhaps too well known to require documentation. But I must acknowledge the authorities on which I rely in retelling it. J. Franklin, From Slavery to Freedom (4th ed.1974) (hereinafter Franklin); R. Kluger, Simple Justice (1975) (hereinafter Kluger); C. Woodward, The Strange Career of Jim Crow (3d ed.1974) (hereinafter Woodward).[Footnote 4/2]U.S. Dept. of Commerce, Bureau of the Census, Statistical Abstract of the United States 65 (1977) (Table 94).[Footnote 4/3]Id. at 70 (Table 102) .[Footnote 4/4]Ibid.[Footnote 4/5]U.S. Dept. of Commerce, Bureau of the Census, Current Population Reports, Series P-60, No. 107, p. 7 (1977) (Table 1).[Footnote 4/6]Id. at 20 (Table 14).[Footnote 4/7]U.S. Dept. of Labor, Bureau of Labor Statistics, Employment and Earnings, January, 1978, p. 170 (Table 44).[Footnote 4/8]Ibid.[Footnote 4/9]U.S. Dept. of Commerce, Bureau of the Census, Current Population Reports, Series P-60, No. 105, p. 198 (1977) (Table 47).[Footnote 4/10]U.S. Dept. of Commerce, Bureau of the Census, Statistical Abstract, supra, at 25 (Table 24).[Footnote 4/11]Id. at 407-408 (Table 662) (based on 1970 census).[Footnote 4/12]Indeed, the action of the University finds support in the regulations promulgated under Title VI by the Department of Health, Education, and Welfare and approved by the President, which authorize a federally funded institution to take affirmative steps to overcome past discrimination against groups even where the institution was not guilty of prior discrimination. 45 CFR § 80.3(b)(6)(ii) (1977).MR. JUSTICE BLACKMUN.I participate fully, of course, in the opinion, ante p. 438 U. S. 324, that bears the names of my Brothers BRENNAN, WHITE, MARSHALL, and myself. I add only some general observations that hold particular significance for me, and then a few comments on equal protection. Page 438 U. S. 403IAt least until the early 1970's, apparently only a very small number, less than 2%, of the physicians, attorneys, and medical and law students in the United States were members of what we now refer to as minority groups. In addition, approximately three-fourths of our Negro physicians were trained at only two medical schools. If ways are not found to remedy that situation, the country can never achieve its professed goal of a society that is not race-conscious.I yield to no one in my earnest hope that the time will come when an "affirmative action" program is unnecessary and is, in truth, only a relic of the past. I would hope that we could reach this stage within a decade, at the most. But the story of Brown v. Board of Education, 347 U. S. 483 (1954), decided almost a quarter of a century ago, suggests that that hope is a slim one. At some time, however, beyond any period of what some would claim is only transitional inequality, the United States must and will reach a stage of maturity where action along this line is no longer necessary. Then persons will be regarded as persons, and discrimination of the type we address today will be an ugly feature of history that is instructive, but that is behind us.The number of qualified, indeed highly qualified, applicants for admission to existing medical schools in the United States far exceeds the number of places available. Wholly apart from racial and ethnic considerations, therefore, the selection process inevitably results in the denial of admission to many qualified persons, indeed, to far more than the number of those who are granted admission. Obviously, it is a denial to the deserving. This inescapable fact is brought into sharp focus here because Allan Bakke is not himself charged with discrimination, and yet is the one who is disadvantaged, and because the Medical School of the University of California at Davis itself is not charged with historical discrimination.One theoretical solution to the need for more minority Page 438 U. S. 404 members in higher education would be to enlarge our graduate schools. Then all who desired and were qualified could enter, and talk of discrimination would vanish. Unfortunately, this is neither feasible nor realistic. The vast resources that apparently would be required simply are not available. And the need for more professional graduates, in the strict numerical sense, perhaps has not been demonstrated at all.There is no particular or real significance in the 84-16 division at Davis. The same theoretical, philosophical, social, legal, and constitutional considerations would necessarily apply to the case if Davis' special admissions program had focused on any lesser number, that is, on 12 or 8 or 4 places or, indeed, on only 1.It is somewhat ironic to have us so deeply disturbed over a program where race is an element of consciousness, and yet to be aware of the fact, as we are, that institutions of higher learning, albeit more on the undergraduate than the graduate level, have given conceded preferences up to a point to those possessed of athletic skills, to the children of alumni, to the affluent who may bestow their largess on the institutions, and to those having connections with celebrities, the famous, and the powerful.Programs of admission to institutions of higher learning are basically a responsibility for academicians and for administrators and the specialists they employ. The judiciary, in contrast, is ill-equipped and poorly trained for this. The administration and management of educational institutions are beyond the competence of judges and are within the special competence of educators, provided always that the educators perform within legal and constitutional bounds. For me, therefore, interference by the judiciary must be the rare exception, and not the rule.III, of course, accept the propositions that (a) Fourteenth Amendment rights are personal; (b) racial and ethnic distinctions, Page 438 U. S. 405 where they are stereotypes, are inherently suspect and call for exacting judicial scrutiny; (c) academic freedom is a special concern of the First Amendment; and (d) the Fourteenth Amendment has expanded beyond its original 1868 concept, and now is recognized to have reached a point where, as MR. JUSTICE POWELL states, ante at 438 U. S. 293, quoting from the Court's opinion in McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 427 U. S. 296 (1976), it embraces a "broader principle."This enlargement does not mean for me, however, that the Fourteenth Amendment has broken away from its moorings and its original intended purposes. Those original aims persist. And that, in a distinct sense, is what "affirmative action," in the face of proper facts, is all about. If this conflicts with idealistic equality, that tension is original Fourteenth Amendment tension, constitutionally conceived and constitutionally imposed, and it is part of the Amendment's very nature until complete equality is achieved in the area. In this sense, constitutional equal protection is a shield.I emphasize in particular that the decided cases are not easily to be brushed aside. Many, of course, are not precisely on point, but neither are they off point. Racial factors have been given consideration in the school desegregation cases, in the employment cases, in Lau v. Nichols, 414 U. S. 563 (1974), and in United Jewish Organizations v. Carey, 430 U. S. 144 (1977). To be sure, some of these may be "distinguished" on the ground that victimization was directly present. But who is to say that victimization is not present for some members of today's minority groups, although it is of a lesser and perhaps different degree. The petitioners in United Jewish Organizations certainly complained bitterly of their reapportionment treatment, and I rather doubt that they regard the "remedy" there imposed as one that was "to improve" the group's ability to participate, as MR. JUSTICE POWELL describes it, ante at 438 U. S. 305. And surely. in Lau v. Nichols, we looked to ethnicity. Page 438 U. S. 406I am not convinced, as MR. JUSTICE POWELL seems to be, that the difference between the Davis program and the one employed by Harvard is very profound, or constitutionally significant. The line between the two is a thin and indistinct one. In each, subjective application is at work. Because of my conviction that admission programs are primarily for the educators, I am willing to accept the representation that the Harvard program is one where good faith in its administration is practiced, as well as professed. I agree that such a program, where race or ethnic background is only one of many factors, is a program better formulated than Davis' two-track system. The cynical, of course, may say that, under a program such as Harvard's, one may accomplish covertly what Davis concedes it does openly. I need not go that far, for, despite its two-track aspect, the Davis program, for me, is within constitutional bounds, though perhaps barely so. It is surely free of stigma, and, as in United Jewish Organizations, I am not willing to infer a constitutional violation.It is worth noting, perhaps, that governmental preference has not been a stranger to our legal life. We see it in veterans' preferences. We see it in the aid-to-the-handicapped programs. We see it in the progressive income tax. We see it in the Indian programs. We may excuse some of these on the ground that they have specific constitutional protection or, as with Indians, that those benefited are wards of the Government. Nevertheless, these preferences exist, and may not be ignored. And in the admissions field, as I have indicated, educational institutions have always used geography, athletic ability, anticipated financial largess, alumni pressure, and other factors of that kind.I add these only as additional components on the edges of the central question as to which I join my Brothers BRENNAN, WHITE, and MARSHALL in our more general approach. It is gratifying to know that the Court at least finds it constitutional for an academic institution to take race and ethnic background into consideration as one factor, among many, in Page 438 U. S. 407 the administration of its admissions program. I presume that that factor always has been there, though perhaps not conceded or even admitted. It is a fact of life, however, and a part of the real world of which we are all a part. The sooner we get down the road toward accepting and being a part of the real world, and not shutting it out and away from us, the sooner will these difficulties vanish from the scene.I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot -- we dare not -- let the Equal Protection Clause perpetuate racial supremacy.So the ultimate question, as it was at the beginning of this litigation, is: among the qualified, how does one choose?A long time ago, as time is measured for this Nation, a Chief Justice, both wise and far-sighted, said:"In considering this question, then, we must never forget, that it is a constitution we are expounding."McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 407 (1819) (emphasis in original). In the same opinion, the Great Chief Justice further observed:"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."Id. at 17 U. S. 421. More recently, one destined to become a Justice of this Court observed:"The great generalities of the constitution have a content and a significance that vary from age to age."B. Cardozo, The Nature of the Judicial Process 17 (1921). Page 438 U. S. 408 And an educator who became a President of the United States said:"But the Constitution of the United States is not a mere lawyers' document: it is a vehicle of life, and its spirit is always the spirit of the age."W. Wilson, Constitutional Government in the United States 69 (1911).These precepts of breadth and flexibility and ever-present modernity are basic to our constitutional law. Today, again, we are expounding a Constitution. The same principles that governed McCulloch's case in 1819 govern Bakke's case in 1978. There can be no other answer.MR. JUSTICE STEVENS, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST join, concurring in the judgment in part and dissenting in part.It is always important at the outset to focus precisely on the controversy before the Court. [Footnote 5/1] It is particularly important to do so in this case, because correct identification of the issues will determine whether it is necessary or appropriate to express any opinion about the legal status of any admissions program other than petitioner's.IThis is not a class action. The controversy is between two specific litigants. Allan Bakke challenged petitioner's special admissions program, claiming that it denied him a place in medical school because of his race in violation of the Federal and California Constitutions and of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. The California Supreme Court upheld his challenge and ordered him admitted. If the Page 438 U. S. 409 state court was correct in its view that the University's special program was illegal, and that Bakke was therefore unlawfully excluded from the Medical School because of his race, we should affirm its judgment, regardless of our views about the legality of admissions programs that are not now before the Court.The judgment as originally entered by the trial court contained four separate paragraphs, two of which are of critical importance. [Footnote 5/2] Paragraph 3 declared that the University's special admissions program violated the Fourteenth Amendment, the State Constitution, and Title VI. The trial court did not order the University to admit Bakke, because it concluded that Bakke had not shown that he would have been admitted if there had been no special program. Instead, in paragraph 2 of its judgment, it ordered the University to consider Bakke's application for admission without regard to his race or the race of any other applicant. The order did not include any broad Page 438 U. S. 410 prohibition against any use of race in the admissions process; its terms were clearly limited to the University's consideration of Bakke's application. [Footnote 5/3] Because the University has since been ordered to admit Bakke, paragraph 2 of the trial court's order no longer has any significance.The California Supreme Court, in a holding that is not challenged, ruled that the trial court incorrectly placed the burden on Bakke of showing that he would have been admitted in the absence of discrimination. The University then conceded "that it [could] not meet the burden of proving that the special admissions program did not result in Mr. Bakke's failure to be admitted." [Footnote 5/4] Accordingly, the California Supreme Court directed the trial court to enter judgment ordering Bakke's admission. [Footnote 5/5] Since that order superseded paragraph Page 438 U. S. 411 2 of the trial court's judgment, there is no outstanding injunction forbidding any consideration of racial criteria in processing applications.It is therefore perfectly clear that the question whether race can ever be used as a factor in an admissions decision is not an issue in this case, and that discussion of that issue is inappropriate. [Footnote 5/6]IIBoth petitioner and respondent have asked us to determine the legality of the University's special admissions program by reference to the Constitution. Our settled practice, however, is to avoid the decision of a constitutional issue if a case can be fairly decided on a statutory ground."If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable."Spector Motor Co. v. McLaughlin, 323 U. S. 101, 323 U. S. 105. [Footnote 5/7] The more important the issue, the more force Page 438 U. S. 412 there is to this doctrine. [Footnote 5/8] In this case, we are presented with a constitutional question of undoubted and unusual importance. Since, however, a dispositive statutory claim was raised at the very inception of this case, and squarely decided in the portion of the trial court judgment affirmed by the California Supreme Court, it is our plain duty to confront it. Only if petitioner should prevail on the statutory issue would it be necessary to decide whether the University's admissions program violated the Equal Protection Clause of the Fourteenth Amendment.IIISection 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d, provides:"No 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."The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. [Footnote 5/9] The plain language of the statute therefore requires affirmance of the judgment below. A different result Page 438 U. S. 413 cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted.Title VI is an integral part of the far-reaching Civil Rights Act of 1964. No doubt, when this legislation was being debated, Congress was not directly concerned with the legality of "reverse discrimination" or "affirmative action" programs. Its attention was focused on the problem at hand, the "glaring . . . discrimination against Negroes which exists throughout our Nation," [Footnote 5/10] and, with respect to Title VI, the federal funding of segregated facilities. [Footnote 5/11] The genesis of the legislation, however, did not limit the breadth of the solution adopted. Just as Congress responded to the problem of employment discrimination by enacting a provision that protects all races, see McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 427 U. S. 279, [Footnote 5/12] so, too, its answer to the problem of federal funding of segregated facilities stands as a broad prohibition against the exclusion of any individual from a federally funded program "on the ground of race." In the words of the House Report, Title VI stands for"the general principle that no person . . . be excluded from participation . . . on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance."H.R.Rep. No. 914, 88th Page 438 U. S. 414 Cong., 1st Sess, pt. l, p. 25 (1963) (emphasis added). This same broad view of Title VI and § 601 was echoed throughout the congressional debate and was stressed by every one of the major spokesmen for the Act. [Footnote 5/13]Petitioner contends, however, that exclusion of applicants on the basis of race does not violate Title VI if the exclusion carries with it no racial stigma. No such qualification or limitation of § 601's categorical prohibition of "exclusion" is justified by the statute or its history. The language of the entire section is perfectly clear; the words that follow "excluded from" do not modify or qualify the explicit outlawing of any exclusion on the stated grounds.The legislative history reinforces this reading. The only suggestion that § 601 would allow exclusion of nonminority applicants came from opponents of the legislation, and then only by way of a discussion of the meaning of the word "discrimination." [Footnote 5/14] The opponents feared that the term "discrimination" Page 438 U. S. 415 would be read as mandating racial quotas and "racially balanced" colleges and universities, and they pressed for a specific definition of the term in order to avoid this possibility. [Footnote 5/15] In response, the proponents of the legislation gave repeated assurances that the Act would be "colorblind" in its application. [Footnote 5/16] Senator Humphrey, the Senate floor manager for the Act, expressed this position as follows:"[T]he word 'discrimination' has been used in many a court case. What it really means in the bill is a distinction in treatment . . . given to different individuals because of their different race, religion or national origin. . . .""The answer to this question [what was meant by 'discrimination'] is that if race is not a factor, we do not have to worry about discrimination because of race. . . . The Internal Revenue Code does not provide that colored people do not have to pay taxes, or that they can pay their taxes 6 months later than everyone else."110 Cong.Rec. 5864 (1964)."[I]f we started to treat Americans as Americans, not as fat ones, thin ones, short ones, tall ones, brown ones, green ones, yellow ones, or white ones, but as Americans. If we did that, we would not need to worry about discrimination."Id. at 5866. Page 438 U. S. 416In giving answers such as these, it seems clear that the proponents of Title VI assumed that the Constitution itself required a colorblind standard on the part of government, [Footnote 5/17] but that does not mean that the legislation only codifies an existing constitutional prohibition. The statutory prohibition against discrimination in federally funded projects contained in § 601 is more than a simple paraphrasing of what the Fifth or Fourteenth Amendment would require. The Act's proponents plainly considered Title VI consistent with their view of the Constitution, and they sought to provide an effective weapon to implement that view. [Footnote 5/18] As a distillation of what the supporters of the Act believed the Constitution demanded of State and Federal Governments, § 601 has independent force, with language and emphasis in addition to that found in the Constitution. [Footnote 5/19] Page 438 U. S. 417As with other provisions of the Civil Rights Act, Congress' expression of it policy to end racial discrimination may independently proscribe conduct that the Constitution does not. [Footnote 5/20] However, we need not decide the congruence -- or lack of congruence -- of the controlling statute and the Constitution Page 438 U. S. 418 since the meaning of the Title VI ban on exclusion is crystal clear: race cannot be the basis of excluding anyone from participation in a federally funded program.In short, nothing in the legislative history justifies the conclusion that the broad language of § 601 should not be given its natural meaning. We are dealing with a distinct statutory prohibition, enacted at a particular time with particular concerns in mind; neither its language nor any prior interpretation suggests that its place in the Civil Rights Act, won after long debate, is simply that of a constitutional appendage. [Footnote 5/21] In unmistakable terms, the Act prohibits the exclusion of individuals from federally funded programs because of their race. [Footnote 5/22] As succinctly phrased during the Senate debate, under Title VI, it is not "permissible to say yes' to one person, but to say `no' to another person, only because of the color of his skin." [Footnote 5/23]Belatedly, however, petitioner argues that Title VI cannot be enforced by a private litigant. The claim is unpersuasive in the context of this case. Bakke requested injunctive and declaratory relief under Title VI; petitioner itself then joined Page 438 U. S. 419 issue on the question of the legality of its program under Title VI by asking for a declaratory judgment that it was in compliance with the statute. [Footnote 5/24] Its view during state court litigation was that a private cause of action does exist under Title VI. Because petitioner questions the availability of a private cause of action for the first time in this Court, the question is not properly before us. See McGoldrick v. Companie Generale Transatlantique, 309 U. S. 430, 309 U. S. 434. Even if it were, petitioner's original assumption is in accord with the federal courts' consistent interpretation of the Act. To date, the courts, including this Court, have unanimously concluded or assumed that a private action may be maintained under Title VI. [Footnote 5/25] The United States has taken the same position; in its amicus curiae brief directed to this specific issue, it concluded that such a remedy is clearly available, [Footnote 5/26] Page 438 U. S. 420 and Congress has repeatedly enacted legislation predicated on the assumption that Title VI may be enforced in a private action. [Footnote 5/27] The conclusion that an individual may maintain a private cause of action is amply supported in the legislative history of Title VI itself. [Footnote 5/28] In short, a fair consideration of Page 438 U. S. 421 petitioner's tardy attack on the propriety of Bakke's suit under Title VI requires that it be rejected.The University's special admissions program violated Title VI of the Civil Rights Act of 1964 by excluding Bakke from the Medical School because of his race. It is therefore our duty to affirm the judgment ordering Bakke admitted to the University.Accordingly, I concur in the Court's judgment insofar as it affirms the judgment of the Supreme Court of California. To the extent that it purports to do anything else, I respectfully dissent.[Footnote 5/1]Four Members of the Court have undertaken to announce the legal and constitutional effect of this Court's judgment. See opinion of JUSTICES BRENNAN, WHITE, MARSHALL, and BLACKMUN, ante at 438 U. S. 324-325. It is hardly necessary to state that only a majority can speak for the Court or determine what is the "central meaning" of any judgment of the Court.[Footnote 5/2]The judgment first entered by the trial court read, in its entirety, as follows:"IT IS HEREBY ORDERED, ADJUDGED AND DECREED:""1. Defendant, the Regents of the University of California, have judgment against plaintiff, Allan Bakke, denying the mandatory injunction requested by plaintiff ordering his admission to the University of California at Davis Medical School;""2. That plaintiff is entitled to have his application for admission to the medical school considered without regard to his race or the race of any other applicant, and defendants are hereby restrained and enjoined from considering plaintiff's race or the race of any other applicant in passing upon his application for admission;""3. Cross-defendant Allan Bakke have judgment against cross-complaint, the Regents of the University of California, declaring that the special admissions program at the University of California at Davis Medical School violates the Fourteenth Amendment to the United States Constitution, Article 1, Section 21 of the California Constitution, and the Federal Civil Rights Act [42 U.S.C. § 2000d];""4. That plaintiff have and recover his court costs incurred herein in the sum of $217.35."App. to Pet. for Cert. 120a.[Footnote 5/3]In paragraph 2, the trial court ordered that"plaintiff [Bakke] is entitled to have his application for admission to the medical school considered without regard to his race or the race of any other applicant, and defendants are hereby restrained and enjoined from considering plaintiff's race or the race of any other applicant in passing upon his application for admission."See 438 U.S. 265fn5/2|>n. 2, supra, (emphasis added). The only way in which this order can be broadly read as prohibiting any use of race in the admissions process, apart from Bakke's application, is if the final "his" refers to "any other applicant." But the consistent use of the pronoun throughout the paragraph to refer to Bakke makes such a reading entirely unpersuasive, as does the failure of the trial court to suggest that it was issuing relief to applicants who were not parties to the suit.[Footnote 5/4]Appendix B to Application for Stay A19-A20.[Footnote 5/5]18 Cal. 3d 34, 64, 553 P.2d 1152, 1172 (1976). The judgment of the Supreme Court of the State of California affirms only paragraph 3 of the trial court's judgment. The Supreme Court's judgment reads as follows:"IT IS ORDERED, ADJUDGED, AND DECREED by the Court that the judgment of the Superior Court[,] County of Yolo[,] in the above-entitled cause, is hereby affirmed insofar as it determines that the special admission program is invalid; the judgment is reversed insofar as it denies Bakke an injunction ordering that he be admitted to the University, and the trial court is directed to enter judgment ordering Bakke to be admitted. 'Bakke shall recover his costs on these appeals.'"[Footnote 5/6]"This Court . . . reviews judgments, not statements in opinions." Black v. Cutter Laboratories, 351 U. S. 292, 351 U. S. 297.[Footnote 5/7]"From Hayburn's Case, 2 Dall. 409, to Alma Motor Co. v. Timken-Detroit Axle Co. [, 329 U. S. 129,] and the Hatch Act case \[United Public Workers v. Mitchell, 330 U. S. 75,] decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const., Art. III. . . .""The policy, however, has not been limited to jurisdictional determinations. For, in addition,""the Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.""Thus, as those rules were listed in support of the statement quoted, constitutional issues affecting legislation will not be determined in friendly, nonadversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; at the instance of one who fails to show that he is injured by the statute's operation, or who has availed himself of its benefits; or if a construction of the statute is fairly possible by which the question may be avoided."Rescue Army v. Municipal Court, 331 U. S. 549, 331 U. S. 568-569 (footnotes omitted). See also Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346-348 (Brandeis, J., concurring).[Footnote 5/8]The doctrine reflects both our respect for the Constitution as an enduring set of principles and the deference we owe to the Legislative and Executive Branches of Government in developing solutions to complex social problems. See A. Bickel, The Least Dangerous Branch 131 (1962).[Footnote 5/9]Record 29.[Footnote 5/10]H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963).[Footnote 5/11]It is apparent from the legislative history that the immediate object of Title VI was to prevent federal funding of segregated facilities. See, e.g., 110 Cong.Rec. 1521 (1964) (remarks of Rep. Celler); id. at 6544 (remarks of Sen. Humphrey).[Footnote 5/12]In McDonald v. Santa Fe Trail Transp. Co., the Court held that "Title VII prohibits racial discrimination against . . . white petitioners . . . upon the same standards as would be applicable were they Negroes. . . ." 427 U.S. at 427 U. S. 280. Quoting from our earlier decision in Griggs v Duke Power Co., 401 U. S. 424, 401 U. S. 431, the Court reaffirmed the principle that the statute "prohibit[s] [d]iscriminatory preference for any [racial] group, minority or majority.'" 427 U.S. at 427 U. S. 279 (emphasis in original).[Footnote 5/13]See, e.g., 110 Cong.Rec. 1520 (1964) (remarks of Rep. Celler); id. at 5864 (remarks of Sen. Humphrey); id. at 6561 (remarks of Sen. Kuchel); id. at 7055 (remarks of Sen. Pastore). (Representative Celler and Senators Humphrey and Kuchel were the House and Senate floor managers for the entire Civil Rights Act, and Senator Pastore was the majority Senate floor manager for Title VI.)[Footnote 5/14]Representative Abernethy's comments were typical:"Title VI has been aptly described as the most harsh and unprecedented proposal contained in the bill. . . . ""It is aimed toward eliminating discrimination in federally assisted programs. It contains no guideposts and no yardsticks as to what might constitute discrimination in carrying out federally aided programs and projects. . . .""* * * *" "Presumably, the college would have to have a 'racially balanced' staff from the dean's office to the cafeteria. . . .""The effect of this title, if enacted into law, will interject race as a factor in every decision involving the selection of an individual. . . . The concept of 'racial imbalance' would hover like a black cloud over every transaction. . . ."Id. at 1619. See also, e.g., id. at 5611-5613 (remarks of Sen. Ervin); id. at 9083 (remarks of Sen. Gore).[Footnote 5/15]E.g., id. at 5863, 5874 (remarks of Sen. Eastland).[Footnote 5/16]See, e.g., id. at 8364 (remarks off Sen. Proxmire) ("Taxes are collected from whites and Negroes, and they should be expended without discrimination"); id. at 7055 (remarks of Sen. Pastore) ("[Title VI] will guarantee that the money collected by colorblind tax collectors will be distributed Federal and State administrators who are equally colorblind"); and id. at 6543 (remarks of Sen. Humphrey) ("Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination'") (quoting from President Kennedy's Message to Congress, June 19, 1963).[Footnote 5/17]See, e.g., 110 Cong.Rec. 5253 (1964) (remarks of Sen. Humphrey); and id. at 7102 (remarks of Sen. Javits). The parallel between the prohibitions of Title VI and those of the Constitution was clearest with respect to the immediate goal of the Act -- an end to federal funding of "separate but equal" facilities.[Footnote 5/18]"As in Monroe \[v. Pape, 365 U. S. 167], we have no occasion here to""reach the constitutional question whether Congress has the power to make municipalities liable for acts of its officers that violate the civil rights of individuals.""365 U.S. at 365 U. S. 191. For in interpreting the statute, it is not our task to consider whether Congress was mistaken in 1871 in its view of the limit of its power over municipalities; rather, we must construe the statute in light of the impressions under which Congress did, in fact, act, see Ries v. Lynskey, 452 F.2d at 175."Moor v. County of Alameda, 411 U. S. 693, 411 U. S. 709.[Footnote 5/19]Both Title VI and Title VII express Congress' belief that, in the long struggle to eliminate social prejudice and the effects of prejudice, the principle of individual equality, without regard to race or religion, was one on which there could be a "meeting of the minds" among all races and a common national purpose. See Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 435 U. S. 709 ("[T]he basic policy of the statute [Title VII] requires that we focus on fairness to individuals, rather than fairness to classes"). This same principle of individual fairness is embodied in Title VI."The basic fairness of title VI is so clear that I find it difficult to understand why it should create any opposition. . . .""* * * *" "Private prejudices, to be sure, cannot be eliminated overnight. However, there is one area where no room at all exists for private prejudices. That is the area of governmental conduct. As the first Mr. Justice Harlan said in his prophetic dissenting opinion in Plessy v. Ferguson, 163 U. S. 537, 163 U. S. 559:""Our Constitution is color-blind.""So -- I say to Senators -- must be our Government. . . .""Title VI closes the gap between our purposes as a democracy and our prejudices as individuals. The cuts of prejudice need healing. The costs of prejudice need understanding. We cannot have hostility between two great parts of our people without tragic loss in our human values. . . . ""Title VI offers a place for the meeting of our minds as to Federal money."110 Cong.Rec. 7063-7064 (1964) (remarks of Sen. Pastore). Of course, one of the reasons marshaled in support of the conclusion that Title VI was "noncontroversial" was that its prohibition was already reflected in the law. See ibid. (remarks of Sen. Pell and Sen. Pastore).[Footnote 5/20]For example, private employers now under duties imposed by Title VII were wholly free from the restraints imposed by the Fifth and Fourteenth Amendments which are directed only to governmental action.In Lau v. Nichols, 414 U. S. 563, the Government's brief stressed that"the applicability of Title VI . . . does not depend upon the outcome of the equal protection analysis. . . . [T]he statute independently proscribes the conduct challenged by petitioners, and provides a discrete basis for injunctive relief."Brief for United States as Amicus Curiae, O.T. 1973, No. 72-6520, p. 15. The Court, in turn, rested its decision on Title VI. MR. JUSTICE POWELL takes pains to distinguish Lau from the case at hand because the Lau decision "rested solely on the statute." Ante at 438 U. S. 304. See also Washington v. Davis, 426 U. S. 229, 426 U. S. 238-239; Allen v. State Board of Elections, 393 U. S. 544, 393 U. S. 588 (Harlan, J., concurring and dissenting).[Footnote 5/21]As explained by Senator Humphrey, § 601 expresses a principle imbedded in the constitutional and moral understanding of the times."The purpose of title VI is to make sure that funds of the United States are not used to support racial discrimination. In many instances, the practices of segregation or discrimination, which title VI seeks to end, are unconstitutional. . . . In all cases, such discrimination is contrary to national policy, and to the moral sense of the Nation. Thus, title VI is simply designed to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation."110 Cong.Rec. 6544 (1964) (emphasis added).[Footnote 5/22]Petitioner's attempt to rely on regulations issued by HEW for a contrary reading of the statute is unpersuasive. Where no discriminatory policy was in effect., HEW's example of permissible "affirmative action" refers to "special recruitment policies." 45 CFR § 80.5(j) (1977). This regulation, which was adopted in 1973, sheds no light on the legality of the admissions program that excluded Bakke in this case.[Footnote 5/23]110 Cong.Rec. 6047 (1964) (remarks of Sen. Pastore).[Footnote 5/24]Record 30-31.[Footnote 5/25]See, e.g., Lau v. Nichols, supra; Bossier Parish School Board v. Lemon, 370 F.2d 847 (CA5 1967), cert. denied, 388 U.S. 911; Uzzell v. Friday, 547 F.2d 801 (CA4 1977), opinion on rehearing en banc, 558 F.2d 727, cert. pending, No. 77-635; Serna v. Portales, 499 F.2d 1147 (CA10 1974); cf. Chambers v. Omaha Public School District, 536 F.2d 222, 225 n. 2 (CA8 1976) (indicating doubt over whether a money judgment can be obtained under Title VI). Indeed, the Government's brief in Lau v. Nichols, supra, succinctly expressed this common assumption: "It is settled that petitioners . . . have standing to enforce Section 601. . . ." Brief for United States as Amicus Curiae in Lau v. Nichols, O.T. 1973, No. 72-6520, p. 13 n. 5.[Footnote 5/26]Supplemental Brief for United States as Amicus Curiae 24-34. The Government's supplemental brief also suggests that there may be a difference between a private cause of action brought to end a particular discriminatory practice and such an action brought to cut off federal funds. Id. at 28-30. Section 601 is specifically addressed to personal rights, while § 602 -- the fund cutoff provision -- establishes "an elaborate mechanism for governmental enforcement by federal agencies." Supplemental Brief, supra at 28 (emphasis added). Arguably, private enforcement of this "elaborate mechanism" would not fit within the congressional scheme, see separate opinion of MR. JUSTICE WHITE, ante at 438 U. S. 380-383. But Bakke did not seek to cut off the University's federal funding; he sought admission to medical school. The difference between these two courses of action is clear and significant. As the Government itself states:"[T]he grant of an injunction or a declaratory judgment in a private action would not be inconsistent with the administrative program established by Section 602. . . . A declaratory judgment or injunction against future discrimination would not raise the possibility that funds would be terminated, and it would not involve bringing the forces of the Executive Branch to bear on state programs; it therefore would not implicate the concern that led to the limitations contained in Section 602."Supplemental Brief, supra at 30 n. 25.The notion that a private action seeking injunctive or declaratory judgment relief is inconsistent with a federal statute that authorizes termination of funds has clearly been rejected by this Court in prior cases. See Rosado v. Wyman, 397 U. S. 397, 397 U. S. 420.[Footnote 5/27]See 29 U.S.C. § 794 (1976 ed.) (the Rehabilitation Act of 1973) (in particular, the legislative history discussed in Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1285-1286 (CA7 1977)); 20 U.S.C. § 1617 (1976 ed.) (attorney fees under the Emergency School Aid Act); and 31 U.S.C. § 1244 (1976 ed.) (private action under the Financial Assistance Act). Of course, none of these subsequent legislative enactments is necessarily reliable evidence of Congress' intent in 1964 in enacting Title VI, and the legislation was not intended to change the existing status of Title VI.[Footnote 5/28]Framing the analysis in terms of the four-part Cort v. Ash test, see 422 U. S. 66, 422 U. S. 78, it is clear that all four parts of the test are satisfied. (1) Bakke's status as a potential beneficiary of a federally funded program definitely brings him within the "class for whose especial benefit the statute was enacted,'" ibid. (emphasis in original). (2) A cause of action based on race discrimination has not been "traditionally relegated to state law." Ibid. (3) While a few excerpts from the voluminous legislative history suggest that Congress did not intend to create a private cause of action, see opinion of MR. JUSTICE POWELL, ante at 438 U. S. 283 n. 18, an examination of the entire legislative history makes it clear that Congress had no intention to foreclose a private right of action. (4) There is ample evidence that Congress considered private causes of action to be consistent with, if not essential to, the legislative scheme. See, e.g., remarks of Senator Ribicoff:"We come then to the crux of the dispute -- how this right [to participate in federally funded programs without discrimination] should be protected. And even this issue becomes clear upon the most elementary analysis. If Federal funds are to be dispensed on a nondiscriminatory basis, the only possible remedies must fall into one of two categories: first, action to end discrimination; or second, action to end the payment of funds. Obviously action to end discrimination is preferable, since that reaches the objective of extending the funds on a nondiscriminatory basis. But if the discrimination persists and cannot be effectively terminated, how else can the principle of nondiscrimination be vindicated except by nonpayment of funds?"110 Cong.Rec. 7065 (1964). See also id. at 5090, 6543, 6544 (remarks of Sen. Humphrey); id. at 7103, 12719 (remarks of Sen. Javits); id. at 7062, 7063 (remarks of Sen. Pastore).The congressional debates thus show a clear understanding that the principle embodied in § 601 involves personal federal rights that administrative procedures would not, for the most part, be able to protect. The analogy to the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. (1970 ed. and Supp. V), is clear. Both that Act and Title VI are broadly phrased in terms of personal rights ("no person shall be denied . . ."); both Acts were drafted with broad remedial purposes in mind; and the effectiveness of both Acts would be "severely hampered" without the existence of a private remedy to supplement administrative procedures. See Allen v. State Bd. of Elections, 393 U. S. 544, 393 U. S. 556. In Allen, of course, this Court found a private right of action under the Voting Rights Act. | U.S. Supreme CourtRegents of Univ. of California v. Bakke, 438 U.S. 265 (1978)Regents of the University of California v. BakkeNo. 7811Argued October 12, 1977Decided June 28, 1978438 U.S. 265SyllabusThe Medical School of the University of California at Davis (hereinafter Davis) had two admissions programs for the entering class of 100 students -- the regular admissions program and the special admissions program. Under the regular procedure, candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. About one out of six applicants was then given an interview, following which he was rated on a scale of 1 to 100 by each of the committee members (five in 1973 and six in 1974), his rating being based on the interviewers' summaries, his overall grade point average, his science courses grade point average, his Medical College Admissions Test (MCAT) scores, letters of recommendation, extracurricular activities, and other biographical data, all of which resulted in a total "benchmark score." The full admissions committee then made offers of admission on the basis of their review of the applicant's file and his score, considering and acting upon applications as they were received. The committee chairman was responsible for placing names on the waiting list and had discretion to include persons with "special skills." A separate committee, a majority of whom were members of minority groups, operated the special admissions program. The 1973 and 1974 application forms, respectively, asked candidates whether they wished to be considered as "economically and/or educationally disadvantaged" applicants and members of a "minority group" (blacks, Chicanos, Asians, American Indians). If an applicant of a minority group was found to be "disadvantaged," he would be rated in a manner similar to the one employed by the general admissions committee. Special candidates, however, did not have to meet the 2.5 grade point cutoff and were not ranked against candidates in the general admissions process. About one-fifth of the special applicants were invited for interviews in 1973 and 1974, following which they were given benchmark scores, and the top choices were then given to the general admissions committee, which could reject special candidates for failure to meet course requirements or other specific deficiencies. The special committee continued to recommend candidates until 16 special admission selections had been made. During a four-year period, 63 minority Page 438 U. S. 266 students were admitted to Davis under the special program and 44 under the general program. No disadvantaged whites were admitted under the special program, though many applied. Respondent, a white male, applied to Davis in 1973 and 1974, in both years being considered only under the general admissions program. Though he had a 468 out of 500 score in 1973, he was rejected, since no general applicants with scores less than 470 were being accepted after respondent's application, which was filed late in the year, had been processed and completed. At that time, four special admission slots were still unfilled. In 1974 respondent applied early, and though he had a total score of 549 out of 600, he was again rejected. In neither year was his name placed on the discretionary waiting list. In both years, special applicants were admitted with significantly lower scores than respondent's. After his second rejection, respondent filed this action in state court for mandatory, injunctive, and declaratory relief to compel his admission to Davis, alleging that the special admissions program operated to exclude him on the basis of his race in violation of the Equal Protection Clause of the Fourteenth Amendment, a provision of the California Constitution, and § 601 of Title VI of the Civil Rights Act of 1964, which provides, inter alia, that no person shall on the ground of race or color be excluded from participating in any program receiving federal financial assistance. Petitioner cross-claimed for a declaration that its special admissions program was lawful. The trial court found that the special program operated as a racial quota, because minority applicants in that program were rated only against one another, and 16 places in the class of 100 were reserved for them. Declaring that petitioner could not take race into account in making admissions decisions, the program was held to violate the Federal and State Constitutions and Title VI. Respondent's admission was not ordered, however, for lack of proof that he would have been admitted but for the special program. The California Supreme Court, applying a strict scrutiny standard, concluded that the special admissions program was not the least intrusive means of achieving the goals of the admittedly compelling state interests of integrating the medical profession and increasing the number of doctors willing to serve minority patients. Without passing on the state constitutional or federal statutory grounds, the court held that petitioner's special admissions program violated the Equal Protection Clause. Since petitioner could not satisfy its burden of demonstrating that respondent, absent the special program, would not have been admitted, the court ordered his admission to Davis.Held: The judgment below is affirmed insofar as it orders respondent's admission to Davis and invalidates petitioner's special admissions program, Page 438 U. S. 267 but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions.18 Cal. 3d 34, 553 P.2d 1152, affirmed in part and reversed in part.MR. JUSTICE POWELL concluded:1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 438 U. S. 281-287.2. Racial and ethnic classifications of any sort are inherently suspect and call for the most exacting judicial scrutiny. While the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances, petitioner's special admissions program, which forecloses consideration to persons like respondent, is unnecessary to the achievement of this compelling goal, and therefore invalid under the Equal Protection Clause. Pp. 438 U. S. 287-320.3. Since petitioner could not satisfy its burden of proving that respondent would not have been admitted even if there had been no special admissions program, he must be admitted. P. 438 U. S. 320.MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN concluded:1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 438 U. S. 328-355.2. Racial classifications call for strict judicial scrutiny. Nonetheless, the purpose of overcoming substantial, chronic minority underrepresentation in the medical profession is sufficiently important to justify petitioner's remedial use of race. Thus, the judgment below must be reversed in that it prohibits race from being used as a factor in university admissions. Pp. 438 U. S. 355-379.MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST, being of the view that whether race can ever be a factor in an admissions policy is not an issue here; that Title VI applies; and that respondent was excluded from Davis in violation of Title VI, concurs in the Court's judgment insofar as it affirms the judgment of the court below ordering respondent admitted to Davis. Pp. 438 U. S. 408-421.POWELL, J., announced the Court's judgment and filed an opinion expressing his views of the case, in Parts I, III-A, and V-C of which WHITE, J., joined; and in Parts I and V-C of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, WHITE, MARSHALL, and BLACKMUN, Page 438 U. S. 268 JJ., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 438 U. S. 324. WHITE, J., post, p. 438 U. S. 379, MARSHALL, J., post, p. 438 U. S. 387, and BLACKMUN, J., post, p. 438 U. S. 402, filed separate opinions. STEVENS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BURGER, C.J., and STEWART and REHNQUIST, JJ., joined, post, p. 438 U. S. 408. Page 438 U. S. 269 |
359 | 1967_705 | MR. JUSTICE BRENNAN delivered the opinion of the Court.This case presents the question, last considered in Delli Paoli v. United States, 352 U. S. 232, whether the conviction of a defendant at a joint trial should be set aside Page 391 U. S. 124 although the jury was instructed that a codefendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence.A joint trial of petitioner and one Evans in the District Court for the Eastern District of Missouri resulted in the conviction of both by a jury on a federal charge of armed postal robbery, 18 U.S.C. § 2114. A postal inspector testified that Evans orally confessed to him that Evans and petitioner committed the armed robbery. The postal inspector obtained the oral confession, and another in which Evans admitted he had an accomplice whom he would not name, in the course of two interrogations of Evans at the city jail in St. Louis, Missouri, where Evans was held in custody on state criminal charges. Both petitioner and Evans appealed their convictions to the Court of Appeals for the Eighth Circuit. That court set aside Evans' conviction on the ground that his oral confessions to the postal inspector should not have been received in evidence against him. 375 F.2d 355, 361. [Footnote 1] However, the court, relying upon Delli Page 391 U. S. 125 Paoli, affirmed petitioner's conviction because the trial judge instructed the jury that, although Evans' confession was competent evidence against Evans, it was inadmissible hearsay against petitioner, and therefore had to be disregarded in determining petitioner's guilt or innocence. 375 F.2d at 361-363. [Footnote 2] We granted certiorari to reconsider Delli Paoli. 389 U.S. 818. The Solicitor General has since submitted a memorandum stating that,"in the light of the record in this particular case and in the interests of justice, the judgment below should be reversed and the cause remanded for a new trial."The Solicitor General states that this disposition is urged in part because"[h]ere it has been determined that the confession was wrongly admitted against [Evans] and his conviction has been reversed, leading to a new trial at which he was Page 391 U. S. 126 acquitted. To argue, in this situation, that [petitioner's] conviction should nevertheless stand may be to place too great a strain upon the [Delli Paoli] rule at least, where, as here, the other evidence against [petitioner] is not strong."We have concluded, however, that Delli Paoli should be overruled. We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse.The basic premise of Delli Paoli was that it is "reasonably possible for the jury to follow" sufficiently clear instructions to disregard the confessor's extrajudicial statement that his codefendant participated with him in committing the crime. 352 U.S. at 352 U. S. 239. If it were true that the jury disregarded the reference to the codefendant, no question would arise under the Confrontation Clause, because by hypothesis, the case is treated as if the confessor made no statement inculpating the nonconfessor. But since Delli Paoli was decided, this Court has effectively repudiated its basic premise. Before discussing this, we pause to observe that, in Pointer v. Texas, 380 U. S. 400, we confirmed "that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him" secured by the Sixth Amendment, id. at 380 U. S. 404;"a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him."Id. at 380 U. S. 406-407.We applied Pointer in Douglas v. Alabama, 380 U. S. 415, in circumstances analogous to those in the present case. There two persons, Loyd and Douglas, accused Page 391 U. S. 127 of assault with intent to murder, were tried separately. Loyd was tried first and found guilty. At Douglas' trial the State called Loyd as a witness against him. An appeal was pending from Loyd's conviction and Loyd invoked the privilege against self-incrimination and refused to answer any questions. The prosecution was permitted to treat Loyd as a hostile witness. Under the guise of refreshing Loyd's recollection, the prosecutor questioned Loyd by asking him to confirm or deny statements read by the prosecutor from a document purported to be Loyd's confession. These statements inculpated Douglas in the crime. We held that Douglas' inability to cross-examine Loyd denied Douglas "the right of cross-examination secured by the Confrontation Clause." 380 U.S. at 380 U. S. 419. We noted that"effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer."Id. at 380 U. S. 420. The risk of prejudice in petitioner's case was even more serious than in Douglas. In Douglas we said,"Although the Solicitor's reading of Loyd's alleged statement, and Loyd's refusals to answer, were not technically testimony, the Solicitor's reading may well have been the equivalent in the jury's mind of testimony that Loyd, in fact, made the statement, and Loyd's reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true."Id. at 380 U. S. 419. Here Evans' oral confessions were, in fact, testified to, and were therefore actually in evidence. That testimony was legitimate evidence against Evans and to that extent was properly before the jury during its deliberations. Even greater then, was the likelihood that the jury would believe Evans made the statements and that they were true -- not just the self-incriminating portions but those implicating petitioner as well. Plainly, the introduction of Page 391 U. S. 128 Evans' confession added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination, since Evans did not take the stand. Petitioner thus was denied his constitutional right of confrontation.Delli Paoli assumed that this encroachment on the right to confrontation could be avoided by the instruction to the jury to disregard the inadmissible hearsay evidence. [Footnote 3] But, as we have said, that assumption has since been effectively repudiated. True, the repudiation was not in the context of the admission of a confession inculpating a codefendant but in the context of a New York rule which submitted to the jury the question of the voluntariness of the confession itself. Jackson v. Denno, 378 U. S. 368. Nonetheless the message of Jackson for Delli Paoli was clear. We there held hat a defendant is constitutionally entitled at least to have the trial judge first determine whether a confession was made voluntarily Page 391 U. S. 129 before submitting it to the jury for an assessment of its credibility. More specifically, we expressly rejected the proposition that a jury, when determining the confessor's guilt, could be relied on to ignore his confession of guilt should it find the confession involuntary. Id. at 378 U. S. 388-389. Significantly, we supported that conclusion in part by reliance upon the dissenting opinion of Mr. Justice Frankfurter for the four Justices who dissented in Delli Paoli. Id. at 378 U. S. 388, n. 15.That dissent challenged the basic premise of Delli Paoli that a properly instructed jury would ignore the confessor's inculpation of the nonconfessor in determining the latter's guilt."The fact of the matter is that, too often, such admonition against misuse is intrinsically ineffective, in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words, and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell."352 U.S. at 352 U. S. 247. The dissent went on to say, as quoted in the cited note in Jackson,"The government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider, but which they cannot put out of their minds."Id. at 352 U. S. 248. To the same effect, and also cited in the Jackson note, is the statement of Mr. Justice Jackson in his concurring opinion in Krulewitch v. United States, 336 U. S. 440, 336 U. S. 453:"The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction. . . . [Footnote 4] "Page 391 U. S. 130The significance of Jackson for Dell Paoli was suggested by Chief Justice Traynor in People v. Arand, 63 Cal. 2d 518, 528-529, 407 P.2d 265 271-27:"Although Jackson was directly concerned with obviating any risk that a jury might rely on an unconstitutionally obtained confession in determining the defendant's guilt, its logic extends to obviating the risks that the jury may rely on any inadmissible statements. If it is a denial of due process to rely on a jury's presumed ability to disregard an involuntary confession, it may also be a denial of due process to rely on a jury's presumed ability to disregard a codefendant's confession implicating another defendant when it is determining that defendant's guilt or innocence.""Indeed, the latter task may be an even more difficult one for the jury to perform than the former. Under the New York procedure, which Jackson held violated due process, the jury was only required to Page 391 U. S. 131 disregard a confession it found to be involuntary. If it made such a finding, then the confession was presumably out of the case. In joint trials, however, when the admissible confession of one defendant inculpates another defendant, the confession is never deleted from the case and the jury is expected to perform the overwhelming task of considering it in determining the guilt or innocence of the declarant and then of ignoring it in determining the guilt or innocence of any codefendants of the declarant. A jury cannot 'segregate evidence into separate intellectual boxes.' . . . It cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A. [Footnote 5]"In addition to Jackson, our action in 1966 in amending Rule 14 of the Federal Rules of Criminal Procedure also evidences our repudiation of Delli Paoli's basic premise. Rule 14 authorizes a severance where it appears that a defendant might be prejudiced by a joint trial. [Footnote 6] The Rule was amended in 1966 to provide expressly that,"[i]n ruling on a motion by a defendant for severance the Page 391 U. S. 132 court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial."The Advisory Committee on Rules said in explanation of the amendment:"A defendant may be prejudiced by the admission in evidence against a codefendant of a statement or confession made by that codefendant. This prejudice cannot be dispelled by cross-examination if the codefendant does not take the stand. Limiting instructions to the jury may not, in fact, erase the prejudice. . . .""The purpose of the amendment is to provide a procedure whereby the issue of possible prejudice can be resolved on the motion for severance. . . . [Footnote 7]"Those who have defended reliance on the limiting instruction in this area have cited several reasons in support. Judge Learned Hand, a particularly severe critic of the proposition that juries could be counted on to disregard inadmissible hearsay, [Footnote 8] wrote the opinion for the Page 391 U. S. 133 Second Circuit which affirmed Delli Paoli's conviction. 229 F.2d 319. In Judge Hand's view, the limiting instruction, although not really capable of preventing the jury from considering the prejudicial evidence, does as a matter of form provide a way around the exclusionary rules of evidence that is defensible because it "probably furthers, rather than impedes, the search for truth. . . ." Nash v. United States, 54 F.2d 1006, 1007. Insofar as this implies the prosecution ought not to be denied the benefit of the confession to prove the confessor's guilt, [Footnote 9] however, it overlooks alternative ways of achieving that benefit without at the same time infringing the nonconfessor's Page 391 U. S. 134 right of confrontation. [Footnote 10] Where viable alternatives do exist, it is deceptive to rely on the pursuit of truth to defend a clearly harmful practice.Another reason cited in defense of Delli Paoli is the justification for joint trials in general, the argument being that the benefits of joint proceedings should not have to be sacrificed by requiring separate trials in order to use the confession against the declarant. Joint trials do conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial. But the answer to this argument was cogently stated by Judge Lehman of the New York Court of Appeals, dissenting in People v. Fisher, 249 N.Y. 419, 432, 164 N.E. 336, 341:"We still adhere to the rule that an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them. . . . We destroy the age-old rule which in the past has been regarded as a fundamental principle of our jurisprudence Page 391 U. S. 135 by a legalistic formula, required of the judge, that the jury may not consider any admissions against any party who did not join in them. We secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high."Finally, the reason advanced by the majority in Delli Paoli was to tie the result to maintenance of the jury system."Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense."352 U.S. at 352 U. S. 242. We agree that there are many circumstances in which this reliance is justified. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. "A defendant is entitled to a fair trial but not a perfect one." Lutwak v. United States, 344 U. S. 604, 344 U. S. 619; see Hopt v. Utah, 120 U. S. 430, 120 U. S. 438; cf. Fed.Rule Crim.Proc. 52(a). It is not unreasonable to conclude that, in many such cases the jury can and will follow the trial judge's instructions to disregard such information. Nevertheless, as was recognized in Jackson v. Lenno, supra, there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Compare Hopt v. Utah, supra; Throckmorton v. Holt, 180 U. S. 552, 180 U. S. 567; Mora v. United States, 190 F.2d 749; Holt v. United States, 94 F.2d 90. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, Page 391 U. S. 136 who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant, but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. [Footnote 11] The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed. [Footnote 12] Pointer v. Texas, supra. We, of course, acknowledge the impossibility of determining whether, in fact, the jury did or did not ignore Evans' statement inculpating petitioner in determining petitioner's guilt. But that was also true in the analogous situation in Jackson v. Denno, and was not regarded as militating against striking down the New York procedure Page 391 U. S. 137 there involved. It was enough that that procedure posed"substantial threats to a defendant's constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined. These hazards we cannot ignore."378 U.S. at 378 U. S. 389. Here, the introduction of Evans' confession posed a substantial threat to petitioner's right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the concededly clear instructions to the jury to disregard Evans' inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination. The effect is the same as if there had been no instruction at all. See Anderson v. United States, 318 U. S. 350, 318 U. S. 356-357; cf. Burgett v. Texas, 389 U. S. 109, 389 U. S. 115.Reversed | U.S. Supreme CourtBruton v. United States, 391 U.S. 123 (1968)Bruton v. United StatesNo. 705Argued March 11, 1968Decided May 20, 1968391 U.S. 123SyllabusA joint trial of petitioner and one Evans resulted in the convictions of both for armed postal robbery. Evans did not take the stand, but a postal inspector testified that Evans confessed orally that he and petitioner committed the robbery. The trial judge instructed the jury that, although Evans' confession was competent evidence against him it was inadmissible hearsay against petitioner and had to be disregarded in determining petitioner's guilt or innocence. Evans and petitioner both appealed to the Court of Appeals. That court set aside Evans' conviction on the ground that the oral confession should not have been received against him, but affirmed petitioner's conviction in view of the trial judge's instructions, relying on Delli Paoli v. United States, 352 U. S. 232.Held: Because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in the joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. Delli Paoli v. United States, supra, overruled. Pp. 391 U. S. 126-137.375 F.2d 355, reversed. |
360 | 1977_76-1629 | MR. JUSTICE STEWART delivered the opinion of the Court.The question presented in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars the prosecution of an Indian in a federal district court under the Major Crimes Act, 18 U.S.C. § 1153, when he has previously been convicted in a tribal court of a lesser included offense arising out of the same incident.IOn October 16, 1974, the respondent, a member of the Navajo Tribe, was arrested by a tribal police officer at the Bureau of Indian Affairs High School in Many Farms, Ariz. on the Navajo Indian Reservation. [Footnote 1] He was taken to the Page 435 U. S. 315 tribal jail in Chinle, Aris., and charged with disorderly conduct, in violation of Title 17, § 351, of the Navajo Tribal Code (1969). On October 18, two days after his arrest, the respondent pleaded guilty to disorderly conduct and a further charge of contributing to the delinquency of a minor, in violation of Title 17, § 321, of the Navajo Tribal Code (1969). He was sentenced to 15 days in jail or a fine of $30 on the first charge and to 60 days in jail (to be served concurrently with the other jail term) or a fine of $120 on the second. [Footnote 2]Over a year later, on November 19, 1975, an indictment charging the respondent with statutory rape was returned by a grand jury in the United States District Court for the District of Arizona. [Footnote 3] The respondent moved to dismiss this Page 435 U. S. 316 indictment, claiming that, since the tribal offense of contributing to the delinquency of a minor was a lesser included offense of statutory rape, [Footnote 4] the proceedings that had taken place in the Tribal Court barred a subsequent federal prosecution . See Brown v. Ohio, 432 U. S. 161. The District Court, rejecting the prosecutor's argument that "there is not an identity of sovereignties between the Navajo Tribal Courts and the courts of the United States," dismissed the indictment. [Footnote 5] The Court of Appeals for the Ninth Circuit affirmed the judgment of dismissal, concluding that, since "Indian trial courts and United States district courts are not arms of separate sovereigns," the Double Jeopardy Clause barred the respondent's trial. 545 F.2d 1255, 1258. We granted certiorari to resolve an inter-circuit conflict. 434 U.S. 816. [Footnote 6]IIIn Bartkus v. Illinois, 359 U. S. 121, and Abbate v. United States, 359 U. S. 187, this Court reaffirmed the well established Page 435 U. S. 317 principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one. [Footnote 7] The basis for this doctrine is that prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, "subject [the defendant] for the same offence to be twice put in jeopardy":"An offence, in its legal signification, means the transgression of a law. . . . Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. . . . That either or both may (if they see fit) punish such an offender cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence, but only that, by one act, he has committed two offences, for each of which he is justly punishable."Moore v. Illinois, 14 How. 13, 55 U. S. 19-20.It was noted in Abbate, supra at 359 U. S. 195, that the "undesirable consequences" that would result from the imposition of a double jeopardy bar in such circumstances further support the Page 435 U. S. 318 "dual sovereignty" concept. Prosecution by one sovereign for a relatively minor offense might bar prosecution by the other for a much graver one, thus effectively depriving the latter of the right to enforce its own laws. [Footnote 8] While, the Court said, conflict might be eliminated by making federal jurisdiction exclusive where it exists, such a "marked change in the distribution of powers to administer criminal justice" would not be desirable. Ibid.The "dual sovereignty" concept does not apply, however, in every instance where successive cases are brought by nominally different prosecuting entities. Grafton v. United States, 206 U. S. 333, held that a soldier who had been acquitted of murder by a federal court-martial could not be retried for the same offense by a territorial court in the Philippines. [Footnote 9] And Puerto Rico v. Shell Co., 302 U. S. 253, 302 U. S. 264-266, reiterated that successive prosecutions by federal and territorial courts are impermissible, because such courts are "creations emanating from the same sovereignty." Similarly, in Waller v. Florida, 397 U. S. 387, we held that a city and the State of which it Page 435 U. S. 319 is a political subdivision could not bring successive prosecutions for unlawful conduct growing out of the same episode, despite the fact that state law treated the two as separate sovereignties.The respondent contends, and the Court of Appeals held, that the "dual sovereignty" concept should not apply to successive prosecutions by an Indian tribe and the United States, because the Indian tribes are not themselves sovereigns, but derive their power to punish crimes from the Federal Government. This argument relies on the undisputed fact that Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government. Winton v. Amos, 255 U. S. 373, 255 U. S. 391-392; In re Heff, 197 U. S. 488, 197 U. S. 498-499; Lone Wolf v. Hitchcock, 187 U. S. 553; Talton v. Mayes, 163 U. S. 376, 163 U. S. 384. Because of this all-encompassing federal power, the respondent argues that the tribes are merely "arms of the federal government" [Footnote 10] which, in the words of his brief, "owe their existence and vitality solely to the political department of the federal government."We think that the respondent and the Court of Appeals, in relying on federal control over Indian tribes, have misconceived the distinction between those cases in which the "dual sovereignty" concept is applicable and those in which it is not. It is true that territories are subject to the ultimate control of Congress, [Footnote 11] and cities to the control of the State which created them. [Footnote 12] But that fact was not relied upon as the basis for the decisions in Grafton, Shell Co., [Footnote 13] and Waller. Page 435 U. S. 320 What differentiated those cases from Bartkus and Abbate was not the extent of control exercised by one prosecuting authority over the other, but rather the ultimate source of the power under which the respective prosecutions were undertaken.Bartkus and Abbate rest on the basic structure of our federal system, in which States and the National Government are separate political communities. State and Federal Governments "[derive] power from different sources," each from the organic law that established it. United States v. Lanza, 260 U. S. 377, 260 U. S. 382. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and, in doing so, each "is exercising its own sovereignty, not that of the other." Ibid. And while the States, as well as the Federal Government, are subject to the overriding requirements of the Federal Constitution, and the Supremacy Clause gives Congress within its sphere the power to enact laws superseding conflicting laws of the States, this degree of federal control over the exercise of state governmental power does not detract from the fact that it is a State's own sovereignty which is the origin of its power. [Footnote 14]By contrast, cities are not sovereign entities."Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions."Reynolds v. Sims, 377 U. S. 533, 377 U.S. 575. [Footnote 15] A city is nothing more than "an agency of Page 435 U. S. 321 the State." Williams v. Eggleston, 170 U. S. 304, 170 U. S. 310. Any power it has to define and punish crimes exists only because such power has been granted by the State; the power "derive[s] . . . from the source of [its] creation." Mount Pleasant v. Beckwith, 100 U. S. 514, 100 U. S. 524. As we said in Waller v. Florida, supra at 397 U. S. 393, "the judicial power to try petitioner . . . in municipal court springs from the same organic law that created the state court of general jurisdiction."Similarly, a territorial government is entirely the creation of Congress, "and its judicial tribunals exert all their powers by authority of the United States." Grafton v. United States, supra at 206 U. S. 354; see Cincinnati Soap Co. v. United States, 301 U. S. 308, 301 U. S. 317; United States v. Kagama, 118 U. S. 375, 118 U. S. 380; American Ins. Co. v. Canter, 1 Pet. 511, 26 U. S. 542. [Footnote 16] When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as an independent political community like a State, but as "an agency of the federal government." Domenech v. National City Bank, 294 U. S. 199, 294 U. S. 204-205.Thus, in a federal Territory and the Nation, as in a city and a State, "[t]here is but one system of government, or of laws operating within [its] limits." Benner v. Porter, 9 How. 235, 50 U. S. 242. City and State, or Territory and Nation, are not two separate sovereigns to whom the citizen owes separate allegiance in any meaningful sense, but one alone. [Footnote 17] And the "dual sovereignty" concept of Bartkus and Abbate does not permit a single sovereign to impose multiple punishment for Page 435 U. S. 322 a single offense merely by the expedient of establishing multiple political subdivisions with the power to punish crimes.IIIIt is undisputed that Indian tribes have power to enforce their criminal laws against tribe members. Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain "a separate people, with the power of regulating their internal and social relations." United States v. Kagama, supra at 118 U. S. 381-382; Cherokee Nation v. Georgia, 5 Pet. 1, 30 U. S. 16. [Footnote 18] Their right of internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions. United States v. Antelope, 430 U. S. 641, 430 U. S. 643 n. 2; Talton v. Mayes, 163 U.S. at 163 U. S. 380; Ex parte Crow Dog, 109 U. S. 556, 109 U. S. 571-572; see 18 U.S.C. § 1152 (1976 ed.), infra, n 21. As discussed above in 435 U. S. the controlling question in this case is the source of this power to punish tribal offenders: is it a part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress?AThe powers of Indian tribes are, in general, "inherent powers of a limited sovereignty which has never been extinguished." F. Cohen, Handbook of Federal Indian Law 122 (1945) (emphasis in original). Before the coming of the Europeans, the tribes were self-governing sovereign political Page 435 U. S. 323 communities. See McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 411 U. S. 172. Like all sovereign bodies, they then had the inherent power to prescribe laws for their members and to punish infractions of those laws.Indian tribes are, of course, no longer "possessed of the full attributes of sovereignty." United States v. Kagama, supra at 118 U. S. 381. Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised. [Footnote 19] By specific treaty provision, they yielded up other sovereign powers; by statute, in the exercise of its plenary control, Congress has removed still others.But our cases recognize that the Indian tribes have not given up their full sovereignty. We have recently said:"Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory. . . . [They] are a good deal more than 'private, voluntary organizations.'"United States v. Mazurie, 419 U. S. 544, 419 U. S. 557; see also Turner v. United States, 248 U. S. 354, 248 U. S. 354-355; Cherokee Nation v. Georgia, supra at 30 U. S. 117. The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress, and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. See Oliphant v. Suquamish Indian Tribe, ante, p. 435 U. S. 191.BIt is evident that the sovereign power to punish tribal offenders has never been given up by the Navajo Tribe, and that tribal exercise of that power today is therefore the continued Page 435 U. S. 324 exercise of retained tribal sovereignty. Although both of the treaties executed by the Tribe with the United States [Footnote 20] provided for punishment by the United States of Navajos who commit crimes against non-Indians, nothing in either of them deprived the Tribe of its own jurisdiction to charge, try, and punish members of the Tribe for violations of tribal law. On the contrary, we have said that"[i]mplicit in these treaty terms . . . was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed."Williams v. Lee, 358 U. S. 217, 358 U. S. 221-222; see also Warren Trading Post v. Tax Comm'n, 380 U. S. 685.Similarly, statutes establishing federal criminal jurisdiction over crimes involving Indians have recognized an Indian tribe's jurisdiction over its members. The first Indian Trade and Intercourse Act, Act of July 22, 1790, § 5, 1 Stat. 138, provided only that the Federal Government would punish offenses committed against Indians by "any citizen or inhabitant of the United States"; it did not mention crimes committed by Indians. In 1817, federal criminal jurisdiction was extended to crimes committed within the Indian country by "any Indian, or other person or persons," but "any offence committed by one Indian against another, within any Indian boundary" was excluded. Act of Mar. 3, 1817, ch. 92, 3 Stat. 383. In the Indian Trade and Intercourse Act of 1834, § 25, 4 Stat. 733, Congress enacted the direct progenitor of the General Crimes Act, now 18 U.S.C. § 1152 (1976 ed.), which makes federal enclave criminal law generally applicable to crimes in "Indian country." [Footnote 21] In this statute, Congress carried Page 435 U. S. 325 forward the intra-Indian offense exception because "the tribes have exclusive jurisdiction" of such offenses, and "we can[not] with any justice or propriety extend our laws to" them. H.R.Rep. No. 474, 23d Cong., 1st Sess., 13 (1834). And in 1854, Congress expressly recognized the jurisdiction of tribal courts when it added another exception to the General Crimes Act, providing that federal courts would not try an Indian "who has been punished by the local law of the tribe." Act of Mar. 27, 1854, § 3, 10 Stat. 270. [Footnote 22] Thus, far from depriving Indian tribes of their sovereign power to punish offenses against tribal law by members of a tribe, Congress has repeatedly recognized that power and declined to disturb it. [Footnote 23] Page 435 U. S. 326Moreover; the sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 414 U. S. 667-668; Johnson v. M'Intosh, 8 Wheat. 543, 21 U. S. 574. They cannot enter into direct commercial or governmental relations with foreign nations. Worcester v. Georgia, 6 Pet. 515, 31 U. S. 559; Cherokee Nation v. Georgia, 5 Pet. at 30 U. S. 17-18; Fletcher v. Peck, 6 Cranch 87, 10 U. S. 147 (Johnson, J., concurring). And, as we have recently held, they cannot try nonmembers in tribal courts. Oliphant v. Suquamish Indian Tribe, ante, p. 435 U. S. 191.These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status."[T]he settled doctrine of the law of nations is that a weaker power does not surrender its independence -- its right to self-government, by associating with a stronger and taking its protection."Worcester v. Georgia, supra, at 31 U. S. 560-561.CThat the Navajo Tribe's power to punish offenses against tribal law committed by its members is an aspect of its Page 435 U. S. 327 retained sovereignty is further supported by the absence of any federal grant of such power. If Navajo self-government were merely the exercise of delegated federal sovereignty, such a delegation should logically appear somewhere. But no provision in the relevant treaties or statutes confers the right of self-government in general, or the power to punish crimes in particular, upon the Tribe. [Footnote 24]It is true that, in the exercise of the powers of self-government, as in all other matters, the Navajo Tribe, like all Indian tribes, remains subject to ultimate federal control. Thus, before the Navajo Tribal Council created the present Tribal Code and tribal courts, [Footnote 25] the Bureau of Indian Affairs established a Code of Indian Tribal Offenses and a Court of Indian Offenses for the reservation. See 25 CFR Part 11 (1977); cf. 25 U.S.C. § 1311. [Footnote 26] Pursuant to federal regulations, the present Tribal Code was approved by the Secretary of the Interior before becoming effective. See 25 CFR § 11.1(e) (1977). Moreover, the Indian Reorganization Act of 1934, § 16, 48 Stat. 987, 25 U.S.C. § 476, and the Act of Apr.19, 1950, § 6, 64 Stat. 46, 25 U.S.C. § 636, each authorized the Tribe to adopt a constitution for self-government. And the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. § 1302, Page 435 U. S. 328 made most of the provisions of the Bill of Rights applicable to the Indian tribes and limited the punishment tribal courts could impose to imprisonment for six months, or a fine of $500, or both.But none of these laws created the Indians' power to govern themselves and their right to punish crimes committed by tribal offenders. Indeed, the Wheeler-Howard Act and the Navajo-Hopi Rehabilitation Act both recognized that Indian tribes already had such power under "existing law." See Powers of Indian Tribes, 55 I.D. 14 (1934). That Congress has, in certain ways, regulated the manner and extent of the tribal power of self-government does not mean that Congress is the source of that power.In sum, the power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos' primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority. [Footnote 27] It follows that, when the Navajo Tribe exercises this power, it does so as part of its retained sovereignty, and not as an arm of the Federal Government. [Footnote 28]DThe conclusion that an Indian tribe's power to punish tribal offenders is part of its own retained sovereignty is clearly Page 435 U. S. 329 reflected in a case decided by this Court more than 80 years ago, Talton v. Mayes, 163 U. S. 376. There, a Cherokee Indian charged with murdering another Cherokee in the Indian Territory claimed that his indictment by the Tribe was defective under the Grand Jury Clause of the Fifth Amendment. In holding that the Fifth Amendment did not apply to tribal prosecutions, the Court stated:"The case . . . depends upon whether the powers of local government exercised by the Cherokee nation are Federal powers created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to that Constitution, or whether they are local powers not created by the Constitution, although subject to its general provisions and the paramount authority of Congress. The repeated adjudications of this Court have long since answered the former question in the negative. . . .""* * * *" "True it is that, in many adjudications of this court, the fact has been fully recognized that, although possessed of these attributes of local self-government, when exercising their tribal functions, all such rights are subject to the supreme legislative authority of the United States. . . . But the existence of the right in Congress to regulate the manner in which the local powers of the Cherokee nation shall be exercised does not render such local powers Federal powers arising from and created by the Constitution of the United States."Id. at 163 U. S. 382-384.The relevance of Talton v. Mayes to the present case is clear. The Court there held that, when an Indian tribe criminally punishes a tribe member for violating tribal law, the tribe acts as an independent sovereign, and not as an arm of the Federal Government. [Footnote 29] Since tribal and federal prosecutions are Page 435 U. S. 330 brought by separate sovereigns, they are not "for the same offence," and the Double Jeopardy Clause thus does not bar one when the other has occurred.IVThe respondent contends that, despite the fact that successive tribal and federal prosecutions are not "for the same offence," the "dual sovereignty" concept should be limited to successive state and federal prosecutions. But we cannot accept so restrictive a view of that concept, a view which, as has been noted, would require disregard of the very words of the Double Jeopardy Clause. Moreover, the same sort of "undesirable consequences" identified in Abbate could occur if successive tribal and federal prosecutions were barred despite the fact that tribal and federal courts are arms of separate sovereigns. Tribal courts can impose no punishment in excess of six months' imprisonment or a $500 fine. 25 U.S.C. § 1302(7). On the other hand, federal jurisdiction over crimes committed by Indians includes many major offenses. 18 U.S.C. § 1153 (1976 ed.). [Footnote 30] Thus, when both a federal prosecution for a major crime and a tribal prosecution for a lesser included offense are possible, the defendant will often face the potential of a mild tribal punishment and a federal punishment of substantial severity. Indeed, the respondent in the present case faced the possibility of a federal sentence of 15 years in prison, but received a tribal sentence of no more than 75 days and a small fine. In such a case, the prospect Page 435 U. S. 331 of avoiding more severe federal punishment would surely motivate a member of a tribe charged with the commission of an offense to seek to stand trial first in a tribal court. Were the tribal prosecution held to bar the federal one, important federal interests in the prosecution of major offenses on Indian reservations [Footnote 31] would be frustrated. [Footnote 32]This problem would, of course, be solved if Congress, in the exercise of its plenary power over the tribes, chose to deprive them of criminal jurisdiction altogether. But such a fundamental abridgment of the powers of Indian tribes might be thought as undesirable as the federal preemption of state criminal jurisdiction that would have avoided conflict in Bartkus and Abbate. The Indian tribes are "distinct political communities" with their own mores and laws, Worcester v. Georgia, 6 Pet. at 31 U. S. 557; The Kansas Indians, 5 Wall. 737, 72 U. S. 756, [Footnote 33] which can be enforced by formal criminal proceedings in tribal courts as well as by less formal means. They have a significant interest in maintaining orderly relations among their members and in preserving tribal customs and traditions, apart from the federal interest in law and order on the reservation. Tribal laws and procedures are often influenced by tribal Page 435 U. S. 332 custom and can differ greatly from our own. See Ex parte Crow Dog, 109 U.S. at 109 U. S. 571. [Footnote 34]Thus, tribal courts are important mechanisms for protecting significant tribal interests. [Footnote 35] Federal preemption of a tribe's jurisdiction to punish its members for infractions of tribal law would detract substantially from tribal self-government, just as federal preemption of state criminal jurisdiction would trench upon important state interests. Thus, just as in Bartkus and Abbate, there are persuasive reasons to reject the respondent's argument that we should arbitrarily ignore the settled "dual sovereignty" concept as it applies to successive tribal and federal prosecutions.Accordingly, 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 | U.S. Supreme CourtUnited States v. Wheeler, 435 U.S. 313 (1978)United States v. WheelerNo. 76-1629Argued January 11, 1978Decided March 22, 1978435 U.S. 313SyllabusRespondent, a member of the Navajo Tribe, pleaded guilty in Tribal Court to a charge of contributing to the delinquency of a minor, and was sentenced. Subsequently, he was indicted by a federal grand jury for statutory rape arising out of the same incident. He moved to dismiss the indictment on the ground that, since the tribal offense of contributing to the delinquency of a minor was a lesser included offense of statutory rape, the Tribal Court proceeding barred the subsequent federal prosecution. The District Court granted the motion, and the Court of Appeals affirmed, holding that, since tribal courts and federal district courts are not "arms of separate sovereigns," the Double Jeopardy Clause of the Fifth Amendment barred respondent's federal trial.Held: The Double Jeopardy Clause does not bar the federal prosecution. Pp. 435 U. S. 316-332.(a) The controlling question is the source of an Indian tribe's power to punish tribal offenders, i.e., whether it is a part of inherent tribal sovereignty or an aspect of the sovereignty of the Federal Government that has been delegated to the tribes by Congress. Pp. 435 U. S. 316-322.(b) Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. Pp. 435 U. S. 322-323.(c) Here, it is evident from the treaties between the Navajo Tribe and the United States and from the various statutes establishing federal criminal jurisdiction over crimes involving Indians, that the Navajo Tribe has never given up its sovereign power to punish tribal offenders, nor has that power implicitly been lost by virtue of the Indians' dependent status; thus, tribal exercise of that power is presently the continued exercise of retained tribal sovereignty. Pp. 435 U. S. 323-326.(d) Moreover, such power is not attributable to any delegation of federal authority. Pp. 435 U. S. 326-328.(e) When an Indian tribe criminally punishes a tribe member for violating tribal law, the tribe acts as an independent sovereign, and not as an arm of the Federal Government, Talton v. Mayes, 163 U. S. 376, and since tribal and federal prosecutions are brought by separate sovereigns, Page 435 U. S. 314 they are not "for the same offence," and the Double Jeopardy Clause thus does not bar one when the other has occurred. Pp. 435 U. S. 328-330.(f) To limit the "dual sovereignty" concept to successive state and federal prosecutions, as respondent urges, would result, in a case such as this, in the "undesirable consequences" of having a tribal prosecution for a relatively minor offense bar a federal prosecution for a much graver one, thus depriving the Federal Government of the right to enforce its own laws; while Congress could solve this problem by depriving Indian tribes of criminal jurisdiction altogether, this abridgment of the tribes' sovereign powers might be equally undesirable. See Abbate v. United States, 359 U. S. 187. Pp. 435 U. S. 330-332.545 F.2d 1255, reversed and remanded.STEWART, J., delivered the opinion of the Court, in which all other Members joined except BRENNAN, J., who took no part in the consideration or decision of the case. |
361 | 1967_90 | MR. JUSTICE HARLAN delivered the opinion of the Court.These cases stem from proceedings commenced in 1960 by the Federal Power Commission under § 5(a) of the Natural Gas Act, [Footnote 1] 52 Stat. 823, 15 U.S.C. § 717d(a), to determine maximum just and reasonable rates for sales in interstate commerce [Footnote 2] Of natural gas produced in the Page 390 U. S. 755 Permian Basin. [Footnote 3] 24 F.P.C. 1121. The Commission conducted extended hearings, [Footnote 4] and, in 1965, issued a decision that both prescribed such rates and provided various ancillary requirements. 34 F.P.C. 159 and 1068. On petitions for review, the Court of Appeals for the Tenth Circuit sustained in part and set aside in part the Commission's orders. 375 F.2d 6 and 35. Because these proceedings began a new era in the regulation of natural gas producers, we granted certiorari and consolidated the cases for briefing and extended oral argument. 387 U.S. 902, 388 U. S. 906, 389 U.S. 817. For reasons that follow, we reverse in part and affirm in part the judgments of the Court of Appeals, and sustain in their entirety the Commission's orders.IThe circumstances that led ultimately to these proceedings should first be recalled. The Commission's authority to regulate interstate sales of natural gas is derived entirely from the Natural Gas Act of 1938. 52 Stat. 821. The Act's provisions do not specifically extend to producers or to wellhead sales of natural gas, [Footnote 5] and the Commission declined until 1954 to regulate sales by Page 390 U. S. 756 independent producers [Footnote 6] to interstate pipelines. [Footnote 7] Its efforts to regulate such sales began only after this Court held in 1954 that independent producers are "natural gas compan[ies]" within the meaning of § 2(6) of the Act. 15 U.S.C. § 717a(6); Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672. The Commission has since labored with obvious difficulty to regulate a diverse and growing industry under the terms of an ill-suited statute.The Commission initially sought to determine whether producers' rates were just and reasonable within the meaning of §§ 4(a) [Footnote 8] and 5(a) by examination of each producer's costs of service. [Footnote 9] Although this method has been widely employed in various ratemaking situations, [Footnote 10] it ultimately proved inappropriate for the regulation of independent producers. Producers of natural gas cannot usefully be classed as public utilities. [Footnote 11] They enjoy Page 390 U. S. 757 no franchises or guaranteed areas of service. They are intensely competitive vendors of a wasting commodity they have acquired only by costly and often unrewarded search. Their unit costs may rise or decline with the vagaries of fortune. The value to the public of the services they perform is measured by the quantity and character of the natural gas they produce, and not by the resources they have expended in its search; the Commission and the consumer alike are concerned principally with "what [the producer] gets out of the ground, not . . . what he puts into it. . . ." FPC v. Hope Natural Gas Co., 320 U. S. 591, 320 U. S. 649 (separate opinion). The exploration for and the production of natural gas are thus "more erratic and irregular and unpredictable in relation to investment than any phase of any other utility business." Id. at 320 U. S. 647. Moreover, the number both of independent producers and of jurisdictional sales is large, [Footnote 12] and the administrative burdens placed upon the Commission by an individual company costs of service standard were therefore extremely heavy. [Footnote 13] Page 390 U. S. 758In consequence, the Commission's regulation of producers' sales became increasingly laborious, until, in 1960, it was described as the "outstanding example in the federal government of the breakdown of the administrative process." [Footnote 14] The Commission, in 1960, acknowledged the gravity of its difficulties, [Footnote 15] and announced that it would commence a series of proceedings under § 5(a) in which it would determine maximum producers' rates for each of the major producing areas. [Footnote 16] One member of the Commission has subsequently described these efforts as "admittedly . . . experimental. . . ." [Footnote 17] These cases place in question the validity of the first such proceeding. [Footnote 18]The perimeter of this proceeding was drawn by the Commission in its second Phillips decision and in its Statement of General Policy No. 61-1. The Commission in Phillips asserted that it possesses statutory authority both to determine and to require the application throughout Page 390 U. S. 759 a producing area of maximum rates for producers' interstate sales. [Footnote 19] It averred that the adoption of area maximum rates would appreciably reduce its administrative difficulties, facilitate effective regulation, and ultimately prove better suited to the characteristics of the natural gas industry. Each of these conclusions was reaffirmed in the Commission's opinion in these proceedings. [Footnote 20] Its Statement of General Policy tentatively designated various geographical areas as producing units for purposes of rate regulation; in addition, the Commission there provided two series of area guideline prices, [Footnote 21] which were expected to help to determine"whether proposed initial rates should be certificated without a price condition and whether proposed rate changes should be accepted or suspended. [Footnote 22]"The Commission consolidated three of the producing areas listed in the Statement of General Policy for purposes of this proceeding.The rate structure devised by the Commission for the Permian Basin includes two area maximum prices. The Commission provided one area maximum price for natural gas produced from gas wells and dedicated to interstate Page 390 U. S. 760 commerce after January 1, 1961. [Footnote 23] It created a second, and lower, area maximum price for all other natural gas produced in the Permian Basin. The Commission reasoned that it may employ price functionally, as a tool to encourage discovery and production of appropriate supplies of natural gas. It found that price could serve as a meaningful incentive to exploration and production only for gas well gas committed to interstate commerce since 1960; the supplies of associated and dissolved gas, [Footnote 24] and of previously committed reserves of gas well gas, were, in contrast, found to be relatively unresponsive to variations in price. The Commission expected that its adoption of separate maximum prices would both provide a suitable incentive to exploration and prevent excessive producer profits. Page 390 U. S. 761The Commission declined to calculate area rates from prevailing field prices. Instead, it derived the maximum just and reasonable rate for new gas well gas from composite cost data, obtained from published sources and from producers through a series of cost questionnaires. This information was intended in combination to establish the national costs in 1960 of finding and producing gas well gas; it was understood not to reflect any variations in cost peculiar either to the Permian Basin or to periods prior to 1960. The maximum just and reasonable rate for all other gas was derived chiefly from the historical costs of gas well gas produced in the Permian Basin in 1960; the emphasis was here entirely local and historical. The Commission believed that the uncertainties of Joint cost allocation made it difficult to compute accurately the cost of gas produced in association with oil. [Footnote 25] It held, however, that the costs of such gas could not be greater, and must surely be smaller, than those incurred in the production of flowing gas well gas. In addition, the Commission stated that the exigencies of administration demanded the smallest possible number of separate area rates.Each of the area maximum rates adopted for the Permian Basin includes a return to the producer of 12% on average production investment, calculated from the Page 390 U. S. 762 Commission's two series of cost computations. The Commission assumed for this purpose that production commences one year after investment, that gas wells deplete uniformly, and that they are totally depleted in 20 years. The rate of return was selected after study of the returns recently permitted to interstate pipelines, but, in addition, was intended to take fully into account the greater financial risks of exploration and production. The Commission recognized that producers are hostages to good fortune; they must expect that their programs of exploration will frequently prove unsuccessful, or that only gas of substandard quality will be found.The allowances included in the return for the uncertainties of exploration were, however, paralleled by a system of quality and Btu adjustments. [Footnote 26] The Commission held that gas of less than pipeline quality must be sold at reduced prices, and it provided for this purpose a system of quality standards. The price reduction appropriate in each sale is to be measured by the cost of the processing necessary to raise the gas to pipeline quality; these costs are to be determined by agreement between the parties to the sale, subject to review and approval by the Commission. The Commission ultimately indicated that it would accept any agreement which reflects "a good faith effort to approximate the processing costs involved. . . ." 34 F.P.C. 1068, 1071. In addition, the Commission prescribed that gas with a Btu content of less than 1,000 per cubic foot must be sold at a price proportionately lower than the applicable area maximum, and that gas with a Btu content greater than 1,050 per cubic foot may be sold at a price proportionately higher than the area maximum. The Commission acknowledged that the aggregate revenue consequences Page 390 U. S. 763 of these adjustments could not be precisely calculated, although its opinion denying applications for rehearing provided estimates of the average price reductions that would be necessary. Id. at 1073.The Commission derived from these calculations the following rates for the Permian Basin. [Footnote 27] Gas well gas, including its residue, and gas cap gas, dedicated to interstate commerce after January 1, 1961, may be sold at 16.5� per Mcf (including state production taxes) in Texas, and 15.5� (excluding state production taxes) in New Mexico. [Footnote 28] Flowing gas, including oil well gas and gas well gas dedicated to interstate commerce before January 1, 1961, may be sold at 14.5� per Mcf (including taxes) in Texas, and 13.5� per Mcf (excluding taxes) in New Mexico. Further, the Commission created a minimum just and reasonable rate of 9� per Mcf for all gas of pipeline quality sold under its jurisdiction within the Permian Basin. It found that existing contracts that included lower rates would "adversely affect the public interest." FPC v. Sierra Pacific Power Co., 350 U. S. 348, 350 U. S. 355. The Commission permitted producers to file under § 4(d), 15 U.S.C. § 717c(d), [Footnote 29] for the area minimum Page 390 U. S. 764 rate despite existing contractual limitations, and without the consent of the purchaser.The Commission acknowledged that area maximum rates derived from composite cost data might, in individual cases, produce hardship, and declared that it would, in such cases, provide special relief. It emphasized that exceptions to the area rates would not be readily or frequently permitted, but declined to indicate in detail in what circumstances relief would be given.This rate structure is supplemented by a series of ancillary requirements. First, the Commission provided various special exemptions for producers whose annual jurisdictional sales throughout the United States do not exceed 10,000,000 Mcf. The prices in sales by these relatively small producers need not be adjusted for quality and Btu deficiencies. Moreover, the Commission, by separate order, commenced a rulemaking proceeding to reduce the small producers' reporting and filing obligations under §§ 4 and 7, 15 U.S.C. §§ 717c, f. 34 F.P.C. 434.Second, the Commission imposed a moratorium until January 1, 1968, upon filings under § 4(d) for prices in excess of the applicable area maximum rate. The Commission concluded that such a moratorium was imperative if the administrative benefits of an area proceeding were to be preserved. Further, it permanently prohibited the use of indefinite escalation clauses to increase prevailing contract prices above the applicable area maximum rate. [Footnote 30] Page 390 U. S. 765Finally, the Commission announced that, by further order, it would require refunds of the difference between amounts that individual producers had actually collected in periods subject to refund and the amounts that would have been permissible under the applicable area rate, including any necessary quality adjustments. [Footnote 31] Small producers, although obliged to make refunds, are not required to take into account price reductions for quality deficiencies unless they wish to take advantage of upward adjustments in price because of high Btu content. The Commission rejected the examiner's conclusion that refunds were appropriate only if the aggregate area revenue actually collected exceeds the aggregate area revenue permissible under the applicable area rates. It held that such a formula would prove both inequitable to purchasers and difficult for the Commission to administer effectively.On petitions for review, the Court of Appeals for the Tenth Circuit held that the Commission had authority under the Natural Gas Act to impose maximum area rates upon producers' jurisdictional sales. It sustained, but stayed enforcement of, the Commission's moratorium upon filings under § 4(d) in excess of the applicable area maximum rate. It approved both the Commission's two-price system and its exemptions for small producers. Nonetheless, the court concluded that the Commission failed to satisfy the requirements devised by this Court in FPC v. Hope Natural Gas Co., supra. It held that the Commission had not properly calculated the financial consequences of the quality and Btu adjustments, had not made essential findings as to aggregate revenue, and Page 390 U. S. 766 had not indicated with appropriate precision the circumstances in which relief from the area rates may be obtained by individual producers. 375 F.2d 6. On rehearing, the court also held that the Commission's treatment of refunds was erroneous; it concluded that refunds were permissible only if aggregate actual area revenues have exceeded aggregate permissible area revenues, and only to the amount of the excess, apportioned on "some equitable contract-by-contract basis." The Court of Appeals ordered the cases remanded to the Commission for further proceedings consistent with its opinions. 375 F.2d 35.IIThe parties before this Court have together elected to place in question virtually every detail of the Commission's lengthy proceedings. [Footnote 32] It must be said at the outset that, in assessing these disparate contentions, this Court's authority is essentially narrow and circumscribed. Page 390 U. S. 767Section 19(b) of the Natural Gas Act provides without qualification that the "finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive." More important, we have heretofore emphasized that Congress has entrusted the regulation of the natural gas industry to the informed judgment of the Commission, and not to the preferences of reviewing courts. A presumption of validity therefore attaches to each exercise of the Commission's expertise, and those who would overturn the Commission's judgment undertake "the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences." FPC v. Hope Natural Gas Co., supra, at 320 U. S. 602. We are not obliged to examine each detail of the Commission's decision; if the "total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end." Ibid.Moreover, this Court has often acknowledged that the Commission is not required by the Constitution or the Natural Gas Act to adopt as just and reasonable any particular rate level; rather, courts are without authority to set aside any rate selected by the Commission which is within a "zone of reasonableness." FPC v. Natural Gas Pipeline Co., 315 U. S. 575, 315 U. S. 585. No other rule would be consonant with the broad responsibilities given to the Commission by Congress; it must be free, within the limitations imposed by pertinent constitutional and statutory commands, to devise methods of regulation capable of equitably reconciling diverse and conflicting interests. It is on these premises that we proceed to assess the Commission's orders.IIIThe issues in controversy may conveniently be divided into four categories. In the first are questions of the Commission's statutory and constitutional authority to Page 390 U. S. 768 employ area regulation and to impose various ancillary requirements. In the second are questions of the validity of the rate structure adopted by the Commission for natural gas produced in the Permian Basin. The third includes questions of the accuracy of the cost and other data from which the Commission derived the two area maximum prices. In the fourth are questions of the validity of the refund obligations imposed by the Commission.We turn first to questions of the Commission's constitutional and statutory authority to adopt a system of area regulation and to impose various supplementary requirements. The most fundamental of these is whether the Commission may, consistently with the Constitution and the Natural Gas Act, regulate producers' interstate sales by the prescription of maximum area rates, rather than by proceedings conducted on an individual producer basis. This question was left unanswered in Wisconsin v. FPC, 373 U. S. 294. [Footnote 33] Its solution requires consideration of a series of interrelated problems.It is plain that the Constitution does not forbid the imposition, in appropriate circumstances, of maximum prices upon commercial and other activities. A legislative power to create price ceilings has, in "countries where the common law prevails," been "customary from time immemorial. . . ." Munn v. Illinois, 94 U. S. 113, 94 U. S. 133. Its exercise has regularly been approved by this Court. See, e.g., 280 U. S. v. United States, 280 Page 390 U. S. 769 U.S. 420; Bowles v. Willingham, 321 U. S. 503. No more does the Constitution prohibit the determination of rates through group or class proceedings. This Court has repeatedly recognized that legislatures and administrative agencies may calculate rates for a regulated class without first evaluating the separate financial position of each member of the class; it has been thought to be sufficient if the agency has before it representative evidence, ample in quantity to measure with appropriate precision the financial and other requirements of the pertinent parties. See Tagg Bros. v. United States, supra; Acker v. United States, 298 U. S. 426; United States v. Corrick, 298 U. S. 435. Compare New England Divisions Case, 261 U. S. 184, 261 U. S. 196-199; United States v. Abilene & S. R. Co., 265 U. S. 274, 265 U. S. 290-291; New York v. United States, 331 U. S. 284; Chicago & N.W. R. Co. v. A. T. & S.F. R. Co., 387 U. S. 326, 387 U. S. 341.No constitutional objection arises from the imposition of maximum prices merely because "high cost operators may be more seriously affected . . . than others," Bowles v. Willingham, supra, at 321 U. S. 518, or because the value of regulated property is reduced as a consequence of regulation. FPC v. Hope Natural Gas Co., supra, at 320 U. S. 601. Regulation may, consistently with the Constitution, limit stringently the return recovered on investment, for investors' interests provide only one of the variables in the constitutional calculus of reasonableness. Covington & Lexington Turnpike Co. v. Sandford, 164 U. S. 578, 164 U. S. 596.It is, however, plain that the "power to regulate is not a power to destroy," Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, 116 U. S. 331; Covington & Lexington Turnpike Co. v. Sandford, supra, at 164 U. S. 593, and that maximum rates must be calculated for a regulated class in conformity with the pertinent constitutional limitations. Price control is "unconstitutional . . . if arbitrary, discriminatory, Page 390 U. S. 770 or demonstrably irrelevant to the policy the legislature is free to adopt. . . ." Nebbia v. New York, 291 U. S. 502, 291 U. S. 539. Nonetheless, the just and reasonable standard of the Natural Gas Act "coincides" with the applicable constitutional standards, FPC v. Natural Gas Pipeline Co., supra, at 315 U. S. 586, and any rate selected by the Commission from the broad zone of reasonableness permitted by the Act cannot properly be attacked as confiscatory. Accordingly, there can be no constitutional objection if the Commission, in its calculation of rates, takes fully into account the various interests which Congress has required it to reconcile. We do not suggest that maximum rates computed for a group or geographical area can never be confiscatory; we hold only that any such rates, determined in conformity with the Natural Gas Act, and intended to "balanc[e] . . . the investor and the consumer interests," are constitutionally permissible. FPC v. Hope Natural (as Co., supra, at 320 U. S. 603.One additional constitutional consideration remains. The producers have urged, and certain of this Court's decisions might be understood to have suggested, that, if maximum rates are jointly determined for a group or area, the members of the regulated class must, under the Constitution, be proffered opportunities either to withdraw from the regulated activity or to seek special relief from the group rates. [Footnote 34] We need not determine whether this is, in every situation, constitutionally imperative, for such arrangements have here been provided by the Commission, and we cannot now hold them inadequate.The Commission declared that a producer should be permitted "appropriate relief" if it establishes that its "out-of-pocket expenses in connection with the operation of a particular well" exceed its revenue from the Page 390 U. S. 771 well under the applicable area price. 34 F.P.C. at 226. It did not indicate which operating expenses would be pertinent for these calculations. [Footnote 35] The Commission acknowledged that there might be other circumstances in which relief should be given, but declined to enumerate them. It emphasized, however, that a producer's inability to recover either its unsuccessful exploration costs or the full 12% return on its production investment would not, without more, warrant relief. It announced that, in many situations, it would authorize abandonment under § 7(b), 15 U.S.C. § 717f(b), [Footnote 36] rather than an exception to the area maximum price. Finally, the Commission held that the burden would be upon the producer to establish the propriety of an exception, and that it therefore would not stay enforcement of the area rates pending disposition of individual petitions for special relief.The Court of Appeals held that these arrangements were inadequate. It found the Commission's description of its intentions vague. The court would require the Commission to provide"guidelines which, if followed by an aggrieved producer, will permit it to be heard promptly and to have a stay of the general rate order until its claim for exemption is decided."375 F.2d at 30. We cannot agree. It would doubtless be desirable if the Commission Page 390 U. S. 772 provided, as quickly as may be prudent, a more precise summary of its conditions for special relief, but it was not obliged to delay area regulation until such guidelines could be properly drawn. The Commission quite reasonably believed that the terms of any exceptional relief should be developed as its experience with area regulation lengthens. Moreover, area regulation of producer prices is avowedly still experimental in its terms and uncertain in its ultimate consequences; it is entirely possible that the Commission may later find that its area rate structure for the Permian Basin requires significant modification. [Footnote 37] We cannot now hold that, in these circumstances, the Commission's broad guarantees of special relief were inadequate or excessively imprecise.Nor is there reason now to suppose that petitions for relief will not be expeditiously evaluated, for the Commission has given assurance that they will be "disposed of as promptly as possible." [Footnote 38] If it subsequently appears that the Commission's provisions for special relief are for any reason impermissibly dilatory, this question may then be reconsidered.Furthermore, it is pertinent that the Commission may supplement its provisions for special relief by permitting abandonment of unprofitable activities. The producers Page 390 U. S. 773 urge that this source of relief must be disregarded, since it is entirely conditional upon the Commission's assent. It is enough for present purposes that the Commission has in other circumstances allowed abandonment, [Footnote 39] and that it has indicated that it will, in appropriate cases, authorize it here. Indeed, the Commission has already acknowledged that only in "exceptional situations" would the abandonment of unprofitable facilities prove detrimental to consumers, and thus impermissible under § 7(b). 34 F.P.C. at 226.Finally, we cannot agree that the Commission abused its discretion by its refusal to stay, pro tanto, enforcement of the area rates pending disposition of producers' petitions for special relief. The Court of Appeals would evidently require the Commission automatically to issue such a stay each time a producer seeks relief. This is plainly inconsistent with the established rule that a party is not ordinarily granted a stay of an administrative order without an appropriate showing of irreparable injury. See, e.g., Virginia Petroleum Jobbers Assn. v. FPC, 259 F.2d 921, 925. Moreover, the issuance of a stay of an administrative order pending disposition by the Commission of a motion to "modify or set aside, in whole or in part" the order is a matter committed by the Natural Gas Act to the Commission's discretion. §§ 19(a), (c) 15 U.S.C. §§ 717r(a), (c). We have no reason now to believe that it would in all cases prove an abuse of discretion for the Commission to deny a stay of the area rate order. There might be many situations in which a stay would be inappropriate; at a minimum, the Commission is entitled to give careful consideration to the substantiality of the claim for relief, and to the consequences of any delay in the full administration of the area rate structure. We therefore decline to bind the Commission to any inflexible obligation; we shall assume Page 390 U. S. 774 that it will, in situations in which stays prove appropriate, properly exercise its statutory authority.For the reasons indicated, we find no constitutional infirmity in the Commission's adoption of an area maximum rate system for the Permian Basin.We consider next the claims that the Commission has exceeded the authority given it by the Natural Gas Act. The first and most important of these questions is whether, despite the absence of any constitutional deficiency, area regulation is inconsistent with the terms of the Act. The producers that seek reversal of the judgments below offer three principal contentions on this question. First, they emphasize that the Act uniformly employs the singular to describe those subject to its requirements; § 4(a), for example, provides that rates received by "any natural gas company" must be just and reasonable. It is urged that the draftsman's choice of number indicates that each producer's rates must be individually computed from evidence of its own financial position. We cannot infer so much from so little; we see no more in the draftsman's choice of phrase than that the Act's obligations are imposed severally upon each producer.Reliance is next placed upon one sentence in the Report of the House Committee on Interstate and Foreign Commerce, which, in 1937, recommended passage of the Natural Gas Act. The Committee remarked that the "bill provides for regulation along recognized and more or less standardized lines." H.R.Rep. No. 709, 75th Cong., 1st Sess., 3. It added that the bill's provisions included nothing "novel." Ibid. We find these statements entirely inconclusive, particularly since, as the Committee doubtless was aware, regulation by group or class was a recognized administrative method even in 1937. Compare Tagg Bros. v. United States, supra; New Page 390 U. S. 775 England Divisions Case, supra. See also H.R.Rep. No. 77, 67th Cong., 1st Sess., 10-11; H.R.Rep. No. 456, 66th Cong., 1st Sess., 29-30.Finally, the producers urge that two opinions of this Court establish the inconsistency of area regulation with the Natural Gas Act. It is asserted that the failure of a majority of the Court to adopt the reasoning of Mr. Justice Jackson's separate opinion in FPC v. Hope Natural Gas Co., supra, impliedly rejected the system of regulation now selected by the Commission. We find this without force. The Court in Hope emphasized that we may not impose methods of regulation upon the discretion of the Commission; for purposes of judicial review, the validity of a rate order is determined by "the result reached not the method employed." 320 U.S. at 320 U. S. 602; see also FPC v. Natural Gas Pipeline Co., supra, at 315 U. S. 586. The Court there did not reject area regulation; it repudiated instead the suggestion that courts may properly require the Commission to employ any particular regulatory formula or combination of formulae.The producers next rely upon a dictum in the opinion of the Court in Bowles v. Willingham, supra. The Court remarked that,"under other price-fixing statutes such as the Natural Gas Act of 1938 . . . , Congress has provided for the fixing of rates which are just and reasonable in their application to particular persons or companies."321 U.S. at 321 U. S. 517. The dictum is imprecise, but, even if it were not, we could not agree that it can now be controlling. The construction of the Natural Gas Act was not even obliquely at issue in Bowles, and this Court does not decide important questions of law by cursory dicta inserted in unrelated cases. Whatever the dictum's meaning, we do not regard it as decisive here. Compare Wisconsin v. FPC, 373 U. S. 294, 373 U. S. 310. Page 390 U. S. 776There are, moreover, other factors that indicate persuasively that the Natural Gas Act should be understood to permit area regulation. The Act was intended to create, through the exercise of the national power over interstate commerce, "an agency for regulating the wholesale distribution to public service companies of natural gas moving interstate"; Illinois Gas Co. v. Public Service Co., 314 U. S. 498, 314 U. S. 506; it was for this purpose expected to "balanc[e] . . . the investor and the consumer interests." FPC v. Hope Natural Gas Co., supra, at 320 U. S. 603. This Court has repeatedly held that the width of administrative authority must be measured in part by the purposes for which it was conferred; see, e.g., Piedmont & Northern R. Co. v. Comm'n, 286 U. S. 299; Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 313 U. S. 193-194; National Broadcasting Co. v. United States, 319 U. S. 190; American Trucking Assns. v. United States, 344 U. S. 298, 344 U. S. 311. Surely the Commission's broad responsibilities therefore demand a generous construction of its statutory authority. [Footnote 40]Such a construction is consistent with the view of administrative ratemaking uniformly taken by this Court. The Court has said that the"legislative discretion implied in the ratemaking power necessarily extends to the entire legislative process, embracing the method used in reaching the legislative determination, as well as that determination itself."Los Angeles Gas Co. v. Railroad Comm'n, 289 U. S. 287, 289 U. S. 304. And see San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 189 U. S. 446. It follows that ratemaking agencies are not bound Page 390 U. S. 777 to the service of any single regulatory formula; they are permitted, unless their statutory authority otherwise plainly indicates, "to make the pragmatic adjustments which may be called for by particular circumstances." FPC v. Natural Gas Pipeline Co., supra, at 315 U. S. 586.We are unwilling, in the circumstances now presented, to depart from these principles. The Commission has asserted, and the history of producer regulation has confirmed, that the ultimate achievement of the Commission's regulatory purposes may easily depend upon the contrivance of more expeditious administrative methods. The Commission believes that the elements of such methods may be found in area proceedings. "[C]onsiderations of feasibility and practicality are certainly germane" to the issues before us. Bowles v. Willingham, supra, at 321 U. S. 517. We cannot, in these circumstances, conclude that Congress has given authority inadequate to achieve with reasonable effectiveness the purposes for which it has acted.We must now consider whether the Commission exceeded its statutory authority by the promulgation of various supplementary requirements. The first of these is its imposition of a moratorium until January 1, 1968, upon filings under § 4(d) for prices in excess of the applicable area maximum rate. Although the period for which the moratorium was to be effective has expired, the order is not without continuing effect. The Court of Appeals stayed enforcement of the moratorium until final disposition of the petitions for review, and a number of rate increases have therefore become effective subject to invalidation and refund if the moratorium order is now upheld. See Brief for the Federal Power Commission 69, n. 44.The validity of the moratorium order turns principally upon construction of §§ 4 and 5 of the Act. Section Page 390 U. S. 778 4(d) [Footnote 41] provides that no modification in existing rate schedules may be made by a natural gas company except after 30 days' notice to the Commission. When the Commission receives such notice, it is permitted by § 4(e), [Footnote 42] upon complaint or on its own motion, to suspend the proposed rate schedule for a period not to exceed five months. The Commission is to employ the period of suspension to conduct hearings upon the lawfulness of the proposed rates. If, at the end of the suspension period, appropriate orders have not been issued, the proposed rate schedule becomes effective, subject only to a refund obligation. In contrast, § 5(a) [Footnote 43] permits the Commission, upon complaint from a public agency or a gas distributing company or on its own motion, to conduct proceedings to determine whether existing rates are just and reasonable, and to prescribe rates "to be thereafter observed and in Page 390 U. S. 779 force. . . ." These investigatory powers are not conditional upon the filing by a natural gas company of any proposed change in existing rates.Certain of the producers urge that §§ 4 and 5 must, in combination, be understood to preclude moratoria upon filings under § 4(d). They assert that the period of effectiveness of a rate determination under § 5(a) is limited by § 4(e); they reason that § 4(d) creates an unrestricted right to file rate changes, and that such changes may, under § 4(e), be suspended for a period no longer than five months. If this construction were accepted, it would follow that area proceedings would terminate in rate limitations that could be disregarded by producers five months after their promulgation. The result, as the Commission observed, would be that"the conclusion of one area proceeding would only signal the beginning of the next, and just and reasonable rates for consumers would always be one area proceeding away."34 F.P.C. at 228.We cannot construe the Commission's statutory authority so restrictively. Nothing in § 5(a) imposes limitations of time upon the effectiveness of rate determinations issued under it; rather, the section provides that rates held to be just and reasonable are "to be thereafter observed. . . ." Moreover, this Court has already declined to find in § 4(d) or § 4(e) an "invincible right to raise prices subject only to a six-month delay and refund liability." United Gas v. Callery Properties, 382 U. S. 223, 382 U. S. 232 (opinion concurring in part and dissenting in part). Section 4(d) merely requires notice to the Commission as a condition of any modification of existing rates; it provides that a "change cannot be made without the proper notice to the Commission; it does not say under what circumstances a change can be made." United Gas Co. v. Mobile Gas Corp., 350 U. S. 332, 350 U. S. 339. (Emphasis in original.) Nor does § 4(e) restrict the Page 390 U. S. 780 Commission's authority under § 5(a); it permits the Commission to preserve an existing situation pending consideration of a proposed change in rates, and thereafter to issue an order retroactively forbidding the change; but the "scope and purpose of the Commission's review [under § 5(a)] remain the same. . . ." Id. at 350 U. S. 341.The deficiencies of the producers' construction of §§ 4 and 5 are illustrated by United Gas v. Callery Properties, supra. The Court held in Callery that permanent certifications issued under § 7 may be conditioned, even upon remand, by a moratorium upon filings under § 4(d) for rates in excess of a specified ceiling. At issue were conditions imposed under § 7(e) prior to the determination of just and reasonable rates; but nothing in the pertinent statutory provisions suggests that the Commission's authority under § 5(a) is more narrow. Indeed, if the producers' construction of §§ 4 and 5 were adopted, we should be forced to the uncomfortable result that filings under § 4(d) may be precluded by the Commission's relatively summary determination of a provisional in-line price, but not by its formal adjudication, after full deliberation, of a just and reasonable price. The consequences of such a construction would, as the Commission observed, be the enervation of § 5 and the effective destruction of area regulation. We are, in the absence of compelling evidence that such was Congress' intention, unwilling to prohibit administrative action imperative for the achievement of an agency's ultimate purposes. We have found no such evidence here, and therefore hold that the Commission may under §§ 5 and 16 restrict filings under § 4(d) of proposed rates higher than those determined by the Commission to be just and reasonable.The question remains whether the imposition by the Commission of a moratorium until January 1, 1968, was Page 390 U. S. 781 a permissible exercise of this authority. The Commission found that, in 1960, the costs of gas production had recently been, and would foreseeably remain, "remarkably steady"; [Footnote 44] it reasoned that, in these circumstances, a moratorium of 2 1/2 years, subject to "modification of its original decision after appropriate proceedings held in that docket," [Footnote 45] would both facilitate orderly administration and satisfactorily assure the protection of producers' rights. Individual producers would not have been prevented by the moratorium from seeking relief from the maximum area rates; relief would have been possible both through the Commission's provisions for special exemptions and through motions for modification or termination of the moratorium. This is not a case in which the Commission has sought to bind producers, without recourse and in the face of changing circumstances, to an unchanging rate structure.We cannot, given the apparent stability of production costs, the Commission's relative inexperience with area regulation, and the administrative burdens of concurrent area proceedings, hold that this arrangement was impermissible. We need not attempt to prescribe the limitations of the Commission's authority under §§ 5 and 16 to impose moratoria upon § 4(d) filings; in particular, we intimate no views on the propriety of moratoria created in circumstances of changing costs. These and other difficult issues may more properly await both clarification of the Commission's intentions and the necessities of the particular circumstances. We hold only that this relatively brief moratorium did not, in the circumstances here presented, exceed or abuse the Commission's authority.A collateral issue of statutory authority must be considered. The Commission supplemented its moratorium Page 390 U. S. 782 by prohibiting price increases that exceed the area maximum rates if the increases are the products of certain varieties of contractual price escalation clauses. Unlike the more general moratorium upon filings under § 4(d), this proscription is without limit of time. The Commission's order is applicable to the most favored nation, spiral escalation, and redetermination clauses [Footnote 46] that, in 1961, it entirely forbade in contracts executed on or after April 3, 1961; [Footnote 47] the additional limitation provided here by the Commission was intended to restrict the use of clauses included in contracts executed before the date of effectiveness of the Commission's earlier orders. The Commission reasoned, as had the examiner, that to permit producers to breach the area maximum rates by implementation of such clauses would not be "in accordance with the principles upon which a rate structure should be based." 34 F.P.C. at 236.Indefinite escalation clauses"cause price increases . . . to occur without reference to the circumstances or economics of the particular operation, but solely because Page 390 U. S. 783 of what happens under another contract."34 F.P.C. at 373. There is substantial evidence [Footnote 48] that, in design and function, they are "incompatible with the public interest. . . ." Order No. 232, 25 F.P.C. 379, 380. Indeed, this Court has already entirely sustained the Commission's 1962 order. FPC v. Texaco, 377 U. S. 33.The producers do not suggest that the Commission and Court were there mistaken; they urge, instead, that the Commission has acted inconsistently with its decision in Pure Oil Co., 25 F.P.C. 383, and that it has wrongly invalidated existing contracts. The Commission declined in Pure Oil to declare unenforceable escalation clauses included in previously executed contracts. It reasoned that, since the contracts lacked severability provisions, to strike the escalation clauses would, under "familiar principles of law," destroy the contracts; it feared that this would prove "many times" more prejudicial to the public interest than would the escalation clauses. Id. at 388-389. The producers assert that the Commission has now committed the error that it avoided in Pure Oil. The Commission rejoins that it has not stricken the escalation clauses; it has merely limited their application to prices no higher than the area maximum rates. Alternatively, the Commission avers that, even if the contracts have been frustrated, neither the public nor the producers can suffer, since producers' prices may be as high as, but not higher than, the area maximum.We think that the Commission did not exceed or abuse its authority. Section 5(a) provides without qualification Page 390 U. S. 784 or exception that the Commission may determine whether "any rule, regulation, practice, or contract affecting . . . [any] rate . . . is unjust, unreasonable, unduly discriminatory, or preferential . . . ," and prescribe the "rule, regulation, practice, or contract to be thereafter observed. . . ." Although the Natural Gas Act is premised upon a continuing system of private contracting, United Gas Co. v. Mobile Gas Corp., supra, the Commission has plenary authority to limit or to proscribe contractual arrangements that contravene the relevant public interests. Compare FPC v. Sierra Pacific Power Co., 350 U. S. 348. Nor may its order properly be set aside merely because the Commission has, on an earlier occasion, reached another result; administrative authorities must be permitted, consistently with the obligations of due process, to adapt their rules and policies to the demands of changing circumstances. Compare American Trucking v. A. T. & S. R. Co., 387 U. S. 397, 387 U. S. 416. See 2 K. Davis, Administrative Law Treatise § 18.09, at 610 (1958). We need not, for present purposes, calculate what collateral consequences, if any, the Commission's order may have for the terms or validity of the contracts it reaches; we hold only that the Commission has here permissibly restricted the application of indefinite escalation clauses.The next supplementary order to be considered is the Commission's creation of various exemptions for the smaller producers. The difficulties of the smaller producers differ only in emphasis from those of the larger independent producers and the integrated producer-distributors; but these differences are not without relevant importance. [Footnote 49] Although the resources of the small producers Page 390 U. S. 785 are ordinarily more limited, their activities are characteristically financially more hazardous. [Footnote 50] It appears that they drill a disproportionately large number of exploratory wells, and that these are frequently in areas in which relatively little exploration has previously occurred. [Footnote 51] Their contribution to the search for new gas reserves is therefore significant, but it is made at correspondingly greater financial risks and at higher unit costs. The record before the Commission included evidence that, for this and other reasons, small producers have regularly suffered higher percentages of dry wells, and higher average costs per Mcf of production. [Footnote 52] At the same time, the Commission found that small producers are the source of only a minor share of the total national gas production, and that the prices they have Page 390 U. S. 786 received have followed closely those obtained by the larger producers. [Footnote 53]The Commission reasoned that, in these circumstances, carefully selected special arrangements for small producers would not improperly increase consumer prices. Moreover, it concluded that such exemptions might usefully both streamline the administrative process and strengthen the small producers' financial position. [Footnote 54] The Commission provided two forms of special relief: first, it released small producers from the requirement that quality adjustments be made in price, [Footnote 55] and second, it commenced a rulemaking proceeding intended to relieve them from various filing and reporting obligations. See 34 F.P.C. 434. The Commission asserted that the consequences for consumer prices of the first would be de minimis; it expected that the second would measurably reduce the small producers' regulatory expenses. [Footnote 56] Page 390 U. S. 787We conclude that these arrangements did not exceed the Commission's statutory authority. We recognize that the language of §§ 5 and 7 is without exception or qualification, but it must also be noted that the Commission is empowered, for purposes of its rules and regulations, to "classify persons and matters within its jurisdiction and prescribe different requirements for different classes of persons or matters." § 16, 15 U.S.C. § 717o. The problems and public functions of the small producers differ sufficiently to permit their separate classification, and the exemptions created by the Commission for them are fully consistent with the terms and purposes of its statutory responsibilities. It is not without relevance that this Court has previously expressed the belief that similar arrangements would ameliorate the Commission's administrative difficulties. See FPC v. Hunt, 376 U. S. 515, 376 U. S. 527.Finally, we consider one additional question. Certain of the producers have urged that, having adopted a system of area regulation, the Commission improperly designated the Permian Basin as a regulatory area. It is contended that the Commission failed to provide appropriate opportunities for briefing and argument on questions of the size and composition of the area. We must, before considering the rate structure devised for the Permian Basin by the Commission, examine this contention.The Commission's designation of the Permian Basin as a regulatory area stemmed from its Statement of General Policy, issued September 28, 1960. 24 F.P.C. Page 390 U. S. 788 818. The Commission there announced its intention to regulate producers' interstate sales through the imposition of maximum area prices; it provided, for this purpose, a provisional system of guideline prices for the principal producing areas. The Commission averred that these areas, although "not necessarily in complete accord with geographical and economic factors," are "convenient and well known." Id. at 819. It declared that, as "experience and changing factors" require, it was prepared to alter the areas to eliminate any inequities. Ibid.On December 23, 1960, the Commission ordered the institution of this proceeding, for which it merged three of the producing areas separately listed by the Statement of General Policy. 24 F.P.C. 1121. It unequivocally announced that"no useful purpose would be served at this time by delaying the discharge of our primary responsibility . . . by entertaining issues . . . that the areas we have delineated . . . might be inappropriate for ratemaking purposes."Id. at 1122. It appears that no hearings were conducted, and no evidence taken, on the propriety of the areas thus designated by the Commission for inclusion in this proceeding.We do not doubt that significant economic consequences may, in certain situations, result from the definition of boundaries among regulatory areas. The calculation of average costs might, for example, be influenced by the inclusion or omission of a given group of producers, and the loss or retention of a price differential between regulatory areas might prove decisive to the success of marginal producers. Nonetheless, we hold that the Commission did not abuse its statutory authority by its refusal to complicate still further its first area proceeding by inclusion of issues relating to the proper size and composition of the regulatory area. Page 390 U. S. 789It must first be emphasized that the regulatory area designated by the Commission was evidently both convenient and familiar. There is no evidence before us, and the producers have not alleged, that the Permian Basin, as it was defined by the Commission, does not fit either with prevailing industry practice or with other programs of state or federal regulation. [Footnote 57] Moreover, the Commission was already confronted by an extraordinary variety of difficult issues of first impression; it quite reasonably preferred to simplify, so far as possible, its proceedings. Finally, it is not amiss to note that the Commission evidently has more recently permitted consideration of similar questions in area proceedings. Compare Area Rate Proceeding (Hugoton-Anadarko Area), 31 F.P.C. 888, 891. We assume that, consistent with this practice and with the terms of its Statement of General Policy, the Commission now would, upon an adequate request, permit interested parties to offer evidence and argument on the propriety of modification of the Permian Basin regulatory area. We hold only that the Commission was not obliged, in the circumstances of this case, to include among the disputed issues questions of the proper size and composition of the regulatory area.We therefore conclude that the Commission did not, in these proceedings, violate pertinent constitutional limitations, and that its adoption of a system of area Page 390 U. S. 790 price regulation, supplemented by provisions for a moratorium upon certain price increases and for exceptions for smaller producers, did not abuse or exceed its authority. We accordingly turn to various questions that have been raised respecting the propriety of the rate structure devised by the Commission for the Permian Basin.IVIt is important first to delineate the criteria by which we shall assess the Commission's rate structure. [Footnote 58] We must reiterate that the breadth and complexity of the Commission's responsibilities demand that it be given every reasonable opportunity to formulate methods of regulation appropriate for the solution of its intensely practical difficulties. This Court has therefore repeatedly stated that the Commission's orders may not be overturned if they produce "no arbitrary result." FPC v. Natural Gas Pipeline Co., supra, at 315 U. S. 586; FPC v. Hope Natural Gas Co., supra, at 320 U. S. 602. Although neither law nor economics has yet devised generally accepted standards for the evaluation of ratemaking orders, [Footnote 59] it must nonetheless be obvious that reviewing courts will require criteria more discriminating than justice and arbitrariness if they are sensibly to appraise the Commission's orders. The Court in Hope found appropriate criteria by inquiring whether "the return to the equity owner [is] Page 390 U. S. 791 commensurate with returns on investments in other enterprises having corresponding risks," and whether the return was "sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital." Id. at 320 U. S. 603. And compare S.W. Tel. Co. v. Public Serv. Comm'n, 262 U. S. 276, 262 U. S. 290-292 (dissenting opinion). But see Edgerton, Value of the Service as a Factor in Rate Making, 32 Harv.L.Rev. 516. These criteria, suitably modified to reflect the special circumstances of area regulation, remain pertinent, but they scarcely exhaust the relevant considerations.The Commission cannot confine its inquiries either to the computation of costs of service or to conjectures about the prospective responses of the capital market; it is instead obliged at each step of its regulatory process to assess the requirements of the broad public interests entrusted to its protection by Congress. Accordingly, the "end result" [Footnote 60] of the Commission's orders must be measured as much by the success with which they protect those interests as by the effectiveness with which they "maintain . . . credit and . . . attract capital."It follows that the responsibilities of a reviewing court are essentially three. First, it must determine whether the Commission's order, viewed in light of the relevant facts and of the Commission's broad regulatory duties, abused or exceeded its authority. Second, the court Page 390 U. S. 792 must examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order's essential elements is supported by substantial evidence. Third, the court must determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The court's responsibility is not to supplant the Commission's balance of these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors. Judicial review of the Commission's orders will therefore function accurately and efficaciously only if the Commission indicates fully and carefully the methods by which, and the purposes for which, it has chosen to act, as well as it assessment of the consequences of its orders for the character and future development of the industry. We are, in addition, obliged at this juncture to give weight to the unusual difficulties of this first area proceeding; we must, however, emphasize that this weight must significantly lessen as the Commission's experience with area regulation lengthens. We shall examine the various issues presented by the rate structure in light of these interrelated criteria.The first issue is whether the Commission properly rejected the producers' contention that area rates should be derived from field, or contract, prices. The producers have urged that prevailing contract prices provide an accurate index of aggregate revenue requirements, and that they are an appropriate mechanism for the protection of consumer interests. The record before the Commission, however, supports its conclusion that competition cannot be expected to reduce field prices in the Page 390 U. S. 793 Permian Basin to the "lowest possible reasonable rate consistent with the maintenance of adequate service in the public interest." Atlantic Rfg. Co. v. Public Service Comm'n, 360 U. S. 378, 360 U. S. 388.The field price of natural gas produced in the Permian Basin has in recent years steadily and significantly increased. [Footnote 61] These increases are in part the products of a relatively inelastic supply and steeply rising demand; but they are also symptomatic of the deficiencies of the market mechanism in the Permian Basin. Producers' contracts have in the past characteristically included indefinite escalation clauses. These clauses, in combination with the price leadership of a few large producers, [Footnote 62] and with the inability or unwillingness of interstate pipelines to bargain vigorously for reduced prices, [Footnote 63] have Page 390 U. S. 794 created circumstances in which price increases unconnected with changes in cost may readily be obtained. These market imperfections, operative despite an "essentially monopsonistic environment," [Footnote 64] have accentuated the consequences of inelastic supply and sharply rising demand. Once an increase has been obtained by the larger producers, the escalation clauses have guaranteed similar increases to others. [Footnote 65] In contrast, consumers have been left without effective protection against steadily rising prices. Their alternative sources of energy are, in practice, few, and the demand for natural gas, particularly in California, is therefore relatively unresponsive to price increases. [Footnote 66] The consumer is thus obliged to rely Page 390 U. S. 795 upon the Commission to provide "a complete, permanent and effective bond of protection from excessive rates and charges." Atlantic Rfg. Co. v. Public Service Comm'n, supra, at 360 U. S. 388.We do not now hold, and the Commission has not suggested, [Footnote 67] that field prices are without relevance to the Commission's calculation of just and reasonable rates under § 5(a). The records in subsequent area proceedings may more clearly establish that the market mechanism will adequately protect consumer interests. [Footnote 68] We hold only that, on this record, the Commission was not compelled to adopt field prices as the basis of its computations of area rates.We next examine the Commission's decision to create two maximum area rates for the Permian Basin. Under the Commission's rate structure, the applicable maximum price for a producer's sale is determined both by the moment at which the gas was first dedicated to the interstate market and by the method by which the gas was produced. It follows that two producers, simultaneously Page 390 U. S. 796 offering gas of identical quality and Btu content, may be confronted by different maximum prices.The premises of this arrangement are two. First, the Commission evidently believed that price should be employed functionally, as a tool to encourage the production of appropriate supplies of natural gas. A price is thus just and reasonable within the meaning of §§ 4(a) and 5(a) not merely because it is "somebody's idea of return on a rate base,'" [Footnote 69] but because it results in satisfactory programs of exploration, development and production.Second, the Commission concluded that price could usefully serve as an incentive to exploration and production only if it were computed according to the method by which gas is produced. Natural gas produced jointly with oil is necessarily a relatively unimportant byproduct. The value of oil well gas is, on average, only one-seventeenth that of the oil with which it is produced. See 34 F.P.C. at 322. It cannot be separately sought or independently produced; its production is effectively restricted by state regulations intended to encourage the conservation of oil. Accordingly, the supply of oil well gas is, as the examiner observed, "almost perfectly inelastic." Id. at 323.On the other hand, gas well gas is produced independently of oil, and of state restrictions on oil production. More important, the Commission found that a separate search can now be conducted for gas reservoirs; cumulative drilling experience permits at least the larger producers to direct their programs of exploration and development to the search for gas. [Footnote 70] The supply of gas Page 390 U. S. 797 well gas is therefore relatively elastic, and its price can meaningfully be employed by the Commission to encourage exploration and production. The Commission reasoned that a higher maximum rate for gas well gas dedicated to interstate commerce after the approximate moment at which a separate search became widely possible would provide an effective incentive. [Footnote 71] Correspondingly, the Commission adopted a relatively low price for all other natural gas produced in the Permian Basin, since price could not serve as an incentive, and since any price above average historical costs, plus an appropriate return, would merely confer windfalls.We find no objection under the Natural Gas Act to this dual arrangement. We have emphasized that courts are without authority to set aside any rate adopted by the Commission which is within a "zone of reasonableness." FPC v. Natural Gas Pipeline Co., supra, at 315 U. S. 585. The Commission may, within this zone, employ price functionally in order to achieve relevant regulatory purposes; it may, in particular, take fully into account the probable consequences of a given price level for future programs of exploration and production. Nothing in the purposes or history of the Act forbids the Commission to require different prices for different sales, even if the distinctions are unrelated to quality, if these arrangements are "necessary or appropriate to carry out the provisions of this Act." § 16, 15 U.S.C. § 717o. We hold that the statutory Page 390 U. S. 798 "just and reasonable" standard permits the Commission to require differences in price for simultaneous sales of gas of identical quality, if it has permissibly found that such differences will effectively serve the regulatory purposes contemplated by Congress.The Commission's responsibilities include the protection of future, as well as present, consumer interests. It has here found, on the basis of substantial evidence, that a two-price rate structure will both provide a useful incentive to exploration and prevent excessive producer profits. In these circumstances, there is no objection under the Natural Gas Act to the price differentials required by the Commission.The symmetry of the Commission's incentive program is, however, marred. The Commission held in 1965 that the higher maximum rate should be applicable to gas well gas committed to interstate commerce since January 1, 1961. It is difficult to see how the higher rate could reasonably have been expected to encourage, retrospectively, exploration and production that had already occurred. There is thus force in Commissioner Ross' contention that this arrangement is not fully consistent with the logic of the two-price system. [Footnote 72]Nonetheless, we are constrained to hold that this was a permissible exercise of the Commission's discretion. The Commission believed that its Statement of General Policy, issued September 28, 1960, had created reasonable expectations among producers that higher rates would thereafter be permitted for initial filings under § 7. [Footnote 73] The Commission evidently concluded that fairness Page 390 U. S. 799 obliged it to satisfy, at least in part, those expectations. We must also recognize that an unexpected downward revision of the guideline price for initial filings, with accompanying refunds, might have seriously diminished the producers' confidence in interstate prices, and perhaps threatened the future interstate supply of natural gas. [Footnote 74] We can assume that the Commission gave attention to this possibility. Compare 34 F.P.C. at 188. These factors provide a permissible basis for this exercise of the Commission's authority. [Footnote 75]We must next examine the methods by which the Commission reached the two maximum rates it created for gas produced in the Permian Basin. The Commission justified its adoption of a two-price rate structure by reliance upon functional pricing; it suggested that two prices, with an appropriate differential, may be used so as both to provide an incentive to exploration and to restrict to reasonable levels producers' profits. In turn, it computed the two area maximum prices directly from costs of service, without allowances for non-cost factors. The price differential which the Commission expects to serve as an incentive is the product of differences in the time periods and geographical areas for which costs were Page 390 U. S. 800 computed, and not of non-cost additives to cost components. Finally, the Commission, by its adoption of a moratorium until January 1, 1968, created a temporary price freeze in the Permian Basin. [Footnote 76]Although we would expect that the Commission will hereafter indicate more precisely the formulae by which it intends to proceed, we see no objection to its use of a variety of regulatory methods. Provided only that they do not together produce arbitrary or unreasonable consequences, the Commission may employ any "formula or combination of formulas" it wishes, and is free "to make the pragmatic adjustments which may be called for by particular circumstances." FPC v. Natural Gas Pipeline Co., supra, at 315 U. S. 586. We have already considered the Commission's adoption of a two-price system and of a moratorium, and have concluded that they are each reasonably calculated to achieve appropriate regulatory purposes. It remains now to examine its computation of the area maximum prices from the producers' costs of service.The Commission derived the maximum rate for new gas well gas from composite cost data intended to evidence the national costs in 1960 of finding and producing gas well gas. It reasoned that these costs should be computed from national, and not area, data because, first, the larger producers conduct national programs of exploration, and, second, "much, if not most, of the relevant information" [Footnote 77] was available only on a national Page 390 U. S. 801 basis. It held, in addition, that costs in the Permian Basin did not "vary sufficiently from the national average to warrant a different treatment. . . ." 34 F.P.C. at 191. The Commission found that 1960 cost data should be used, and historical data disregarded, because only relatively current cost data would adequately guarantee an effective incentive for future exploration and production. The Commission was obliged to obtain the relevant cost data from a variety of sources. Natural gas producers have not yet been required to adopt any uniform system of accounts, and no private or public agency had in 1965 collected all the pertinent information. Many of the data were taken from nationally published statistics; [Footnote 78] the balance was derived from questionnaires completed by the producers. The Commission concluded that these sources, "in combination, provide an adequate basis for the costs we have found." Ibid.The maximum just and reasonable rate for all other Permian Basin gas was calculated from cost data intended to reflect the historical costs of gas-well gas produced in 1960 in the Permian Basin. The examiner had computed this rate by essentially the same method he had used for new gas-well gas, with certain cost components adjusted by back-trending. The Commission's staff, on the other hand, offered a comprehensive study of historical costs of service. The Commission adopted both methods, using the examiner's back-trended cost Page 390 U. S. 802 computations as a check upon the accuracy of the staff's presentation.The Commission reasoned that excessive producer profits could be minimized only if the rate for flowing gas were derived from the most precise available evidence of actual historical costs. It therefore held that these costs should be taken from area, and not national, data.The Commission's staff obtained the data necessary for its computation of historical costs from questionnaires completed by producers. The information used by the staff, and ultimately adopted by the Commission, was taken from questionnaires submitted by 42 major producers, which together account for 75% of all the gas produced in the Basin, and 85% of all the gas well gas. Nonetheless, some two-thirds of all the gas produced in the Permian Basin is oil well gas, and Sun Oil estimates that the staff's gas well gas data were thus applicable only to some 15.3% of the total production of natural gas in the Basin in 1960. [Footnote 79] Page 390 U. S. 803We hold that the Commission, in calculating cost data for the two maximum rates by differing geographical bases and time periods, did not abuse its authority. The Commission's use of separate sources of data for the two rates permitted the creation of a price differential between them without the inclusion of non-cost components. Its selections of time periods and geographical bases were entirely consistent with the logic of its system of incentive pricing. In these circumstances, we can find no tenable objection to this aspect of the Commission's rate structure.It is further contended that the Commission impermissibly used flowing gas well gas cost data to calculate the maximum rate for old gas, thereby disregarding entirely the costs of gas produced in association with oil. The Commission's explanation was essentially pragmatic. It reasoned that the uncertainties of joint cost allocation preclude accurate computations of the cost of casinghead and residue gas. Further, the Commission averred that it is administratively imperative to simplify, so far as possible, the area rate structure. The Commission regarded its adoption of a single area maximum price for all gas, except new gas well gas, its residue and gas-cap gas, as "an important step toward simplified and realistic area price regulation." 34 F.P.C. at 211. Page 390 U. S. 804We cannot say that these arrangements are impermissible. There is ample support for the Commission's judgment that the apportionment of actual costs between two jointly produced commodities, only one of which is regulated by the Commission, is intrinsically unreliable. [Footnote 80] It is true that certain of the costs of gas well gas must also be apportioned, but the Commission reasonably concluded that these difficulties are relatively less severe. [Footnote 81] The Commission was, in addition, entitled to give great weight to the administrative importance of a simplified rate structure. Finally, it is relevant that the Commission found that the cost of casinghead and residue gas could not be higher, and, if exploration and development costs are realistically discounted, must surely be lower, than the costs of flowing gas well gas. [Footnote 82] These considerations in combination Page 390 U. S. 805 warranted the Commission's judgment that a single area maximum price for all gas other than new gas well gas should be imposed, and that this maximum rate should be derived entirely from the historic costs of flowing gas well gas.We turn now to the Commission's computation of the proper rate base. The Commission's method here differed significantly from that frequently preferred by regulatory authorities. It did not use a declining rate base and return, but instead computed an average net production investment, to which it applied a constant rate of return. The Commission assumed for this purpose that a gas well depletes at a uniform rate, and that it is, on average, totally depleted in 20 years. It found that the annual capital recovery cost, including depletion, depreciation, and amortization, was 3.95� per Mcf. Allowing one year for a lag between investment and first production, the Commission obtained an average production investment of 43.45� per Mcf. The proper return per Mcf was then calculated by multiplying this figure by the rate of return.The producers argue that this has the effect of postponing revenue, and thus discounting its present value; they suggest that the Commission should properly have Page 390 U. S. 806 employed a declining investment base and return. This is a question peculiarly within the Commission's discretion, and, while the method adopted by the Commission was evidently less favorable to the producers than various other possible formulae, we cannot hold that it was arbitrary or unreasonable.We next consider whether the rate of return adopted by the Commission was a permissible exercise of its regulatory authority. The Commission first asserted that rates of return must be assessed by a comparable earnings standard. Under such a standard, earnings should be permitted that are"equal to that generally being made at the same time and in the same general part of the country on investments in other business undertakings which are attended by corresponding risks and uncertainties."Bluefield Co. v. Public Service Comm'n, 262 U. S. 679, 262 U. S. 692; FPC v. Hope Natural Gas Co., supra, at 320 U. S. 603. Although other standards might properly have been employed, [Footnote 83] the Commission's decision to examine comparable earnings was fully consistent with prevailing administrative practice, and manifestly was not an abuse of its authority.The Commission relied for purposes of comparison chiefly upon the rates of return that have recently been permitted to the interstate pipelines. It found that pipelines had been given returns of 6.0% to 6.5% on net investment, with a yield on equity of 10% to 12%. [Footnote 84] The Page 390 U. S. 807 Commission noted that producers characteristically have less long-term debt than pipelines, [Footnote 85] and that the financial risks of production are somewhat greater than those of transmission. [Footnote 86] It reasoned that these differences warranted a more generous rate of return for producers. In addition, the Commission stated that the risk of finding gas of less than pipeline quality, created by the Commission's promulgation of quality and Btu standards, should be reflected in the rate of return. Finally, the Commission sought to determine the rate of return recently earned by producers of natural gas. It found that accurate rates of return could not be calculated with assurance, although the Commission's staff offered evidence of an average return for nine companies over five years of 12.4% on net investment. [Footnote 87] The Commission concluded that, despite its statistical deficiencies, Page 390 U. S. 808 this and similar evidence must be given "heavy consideration in the decisional process." 34 F.P.C. at 203.On balance, the Commission selected 12% as the proper rate of return for gas of pipeline quality. We think that this judgment was supported by substantial evidence, and that it did not exceed or abuse the Commission's authority. The evidence before the Commission fairly suggests that this rate will be likely to "maintain [the producers'] financial integrity, to attract capital, and to compensate [their] investors for the risks assumed. . . ." FPC v. Hope Natural Gas Co., supra, at 320 U. S. 605. Further, the distributors and public agencies before the Court have not suggested, and we find no reason to believe, that this return will exceed the proper requirements of the industry. [Footnote 88] Certainly, as we shall show below, this return is no more than comparable to that characteristically allowed interstate pipelines.Nonetheless, there remains one further issue essential to an accurate appraisal of the return permitted by the Commission. The Commission's computation of the rate of return was specifically premised in part on the additional financial risks created for producers by the Commission's promulgation of quality and Btu standards. [Footnote 89] Its opinion in these proceedings included a series of Page 390 U. S. 809 specific quality standards. [Footnote 90] The Commission ruled that gas that fails to satisfy these standards must be sold at prices lower than the applicable area maximum; the amount of the reduction necessary in each sale is to be initially determined by the parties, subject to review by the Commission. Further, natural gas with a Btu content of less than 1,000 per cubic foot must be sold at a price proportionately lower than the applicable area maximum, and gas with a Btu content of more than 1,050 per cubic foot may be sold at a price proportionately higher than the area maximum. [Footnote 91] The Page 390 U. S. 810 Commission conceded that it could not precisely determine the revenue consequences of these adjustments, although its opinion denying applications for rehearing provided various estimates. It appears to be conceded that the quality of gas produced in the Basin is characteristically lower than the Commission's standards, and that the standards are therefore likely to be more significant than they might be in other producing areas.The producers urge, and the Court of Appeals held, that this arrangement is doubly erroneous. First, it treats as a risk what properly is a cost, and thus evades the necessity of appropriate findings on the revenue consequences of the quality adjustments. Second, it reduces the rate of return actually permitted individual producers to an unascertainable figure of less than 12%, and thus prevents an accurate appraisal of its sufficiency. We find both suggestions unpersuasive.We cannot now hold that it was impermissible for the Commission to treat the quality adjustments as a risk of production. It must be recalled that the Commission Page 390 U. S. 811 was in this first area rate case unable to determine with precision the average amount of the necessary price reductions, and that it thus would have been difficult to have included them as costs, as the Court of Appeals suggested. Further, we recognize that the Commission's method, premised on agreement between the parties to each sale, has at least the advantage of requiring discrete and accurate adjustments for each transaction. Finally, as we shall show below, treatment of these adjustments as risks of production did not in this case result in inadequate findings, and does not prevent proper appraisal of the rate of return permitted by the Commission. In any event, the Commission's discretion in such matters is necessarily broad, and its choice cannot be said to have abused its discretion.The Commission estimated in its opinion denying applications for rehearing that the quality adjustments would result in average price reductions of from 0.7� to 1.5� per Mcf. In turn, the amount of these adjustments will be reduced by price increases for high Btu content, and by revenue from plant liquids. [Footnote 92] We believe that, in the circumstances presented, these estimates were adequate. The Commission's information about existing contracts was evidently not sufficiently complete to permit precise calculations from previous experience. Moreover, since the adjustments are to be, in the first instance, the product of agreement between the parties, Page 390 U. S. 812 a dimension of uncertainty is necessarily created. Despite these difficulties, the Commission provided reasonably specific estimates of the range of adjustments that it believed would result. We are entitled now to take notice that these are confirmed by subsequent events. [Footnote 93] We hold that the Commission's promulgation of quality standards was accompanied by adequate findings as to their revenue consequences.The Commission did not provide specific findings as to the effect of these revenue adjustments upon the producers' rate of return. This was an unfortunate omission, but it does not preclude evaluation of the Commission's conclusions. It would appear, and counsel for the Commission have estimated, that the rate of return "on average quality" natural gas sold in the Permian Basin might, after quality adjustments, yield "as little" as 10% to 12% on equity. [Footnote 94] These figures presumably must be adjusted upward for sales of pipeline quality gas, sales of gas with a high Btu content, and revenue from plant liquids. Even as adjusted, however, the aggregate return permitted to producers will apparently exceed only slightly that customarily allowed pipelines, for the quantities of pipeline quality and high Btu content gas produced in the Permian Basin are evidently quite small. Nevertheless, the record before the Commission contained evidence sufficient to establish that these rates, as adjusted, will maintain the industry's credit and continue to attract capital. Although the Commission's position might at several places usefully Page 390 U. S. 813 be clarified, [Footnote 95] the producers have not satisfied the "heavy burden" placed upon those who would set aside its decisions. [Footnote 96]VWe have concluded that the various segments of the Commission's rate structure do not separately exceed or abuse its authority. Nonetheless, certain of the producers have argued vigorously that the aggregate revenue permitted by the rate structure is, or might be, inadequate. They urge that the imposition of maximum prices computed from composite costs reduces contract prices to a maximum premised on a cost average, and they conclude that the Commission has therefore denied them the revenue necessary for appropriate programs of exploration and development. Related questions troubled the Court of Appeals. It held that the Commission must, under Hope, place in balance revenue and requirements, and that findings must be provided that will permit reviewing courts to assess the skill with which the Commission has employed its scales. Although we Page 390 U. S. 814 sustain, for reasons stated above, the Commission's rate structure, we believe it proper to examine these additional contentions.Three interrelated questions are pertinent. First, the adequacy of the Commission's aggregate revenue findings must be assessed. Second, we must consider the producers' contentions that the Commission has significantly underestimated the deficiencies of present programs of exploration. Finally, we must determine whether the Commission's use of averaged costs has created a rate structure that is unjust and unreasonable in its consequences.We turn initially to the adequacy of the Commission's revenue findings. It must be emphasized that we perceive no imperative obligation upon the Commission, under either the Natural Gas Act or the decisions of this Court, to provide an apparatus of formal findings, in terms of absolute dollar amounts, as to aggregate revenue and aggregate revenue requirements. It is enough if the Commission proffers findings and conclusions sufficiently detailed to permit reasoned evaluation of the purposes and implications of its order. Compare Chicago & N.W. R. Co. v. A. T. & S.F. R. Co., 387 U. S. 326, 387 U. S. 345-347. As we shall show, the Commission's revenue findings were not, in the circumstances of these proceedings, unduly imprecise. The ambiguities about which the Court of Appeals expressed concern were two. First, the court faulted the Commission for the imprecision of its findings as to the revenue consequences of the quality and Btu adjustments. We have already found adequate the Commission's estimates of the necessary price reductions. Second, the court stated that the rate structure could not be accurately assessed, since the Commission has incorporated in its calculations both cost and non-cost factors; it believed that "the Commission Page 390 U. S. 815 decision rides two horses, and we have no way of knowing the outcome of the race." 375 F.2d at 34.We find this unpersuasive. Although the Commission's exposition of these questions might have been more carefully drawn, it has quite appropriately incorporated in its calculations factors other than producers' costs. [Footnote 97] Cost and non-cost factors do not, as the Court of Appeals supposed, race one against the other; they must be, as they are here, harnessed side by side. The Commission's responsibilities necessarily oblige it to give continuing attention to values that may be reflected only imperfectly by producers' costs; a regulatory method that excluded as immaterial all but current or projected costs could not properly serve the consumer interests placed under the Commission's protection. We have already considered each of the points at which the Commission has given weight to non-cost factors, and have found its judgments consistent with the terms and purposes of its statutory authority. [Footnote 98] There is no reason now to Page 390 U. S. 816 return these cases to the Commission for clarification of these issues. [Footnote 99]Nor can we hold that the Commission has underestimated the deficiencies of current programs of exploration. The producers' argument has been uniformly premised upon the assertion that the ratio of proved recoverable reserves to current production is an accurate index of the industry's financial requirements. The producers urge that this ratio has dangerously declined, [Footnote 100] and conclude that any reduction of prevailing field prices will jeopardize essential programs of exploration. There is, however, substantial evidence that additions to reserves have not been unsatisfactorily low, [Footnote 101] and that Page 390 U. S. 817 recent variations in the ratio of reserves to production are of quite limited significance. [Footnote 102] Nothing in the record establishes as proper or even minimal any particular ratio. [Footnote 103] We do not suggest, nor did the Commission, [Footnote 104] that the Commission should not continuously assess the level and success of exploration, or that the relationship between reserves and production is not a useful benchmark of the industry's future. We hold only that the Commission here permissibly discounted the producers' Page 390 U. S. 818 reliance upon this relationship to establish the inadequacy of its rate structure.Finally, we turn to the contention that these area maximum rates were derived from averaged costs, and therefore cannot, without further adjustment, provide aggregate revenue equal to the producers' aggregate requirements. The producers that support the judgments below emphasize that revenue in 1960 from all jurisdictional sales in the Permian Basin averaged 12.72� per Mcf. [Footnote 105] They contend that this revenue will, under the Commission's order, be reduced by the amount of any necessary quality deductions, by refunds, and by loss of revenue from abrogation of contract prices above the area maximum rates. The producers conclude that the Commission's rate structure will necessarily cause revenue deficiencies, measured by the difference between actual average revenue (12.72� less these adjustments) and 14.5� per Mcf, the rate assertedly found by the Commission to be just and reasonable for flowing gas. They urge that the Commission was properly obliged to balance revenue and costs either by increasing the area minimum rate, or by placing the area maximum rates above average costs.The inadequacies of this reasoning are several. First, it neglects important characteristics of the rate structure. We understand the Commission, despite certain infelicities of its opinion, [Footnote 106] to hold that the just and reasonable rate for old gas not of pipeline quality is 14.5� per Mcf, Page 390 U. S. 819 less the cost of processing necessary to raise it to pipeline quality. The Commission's net just and reasonable rate for such gas is therefore 13.0� to 13.8�, and not 14.5� per Mcf. [Footnote 107] Further, average unit revenue will not be simultaneously reduced, as the producers have suggested, by refunds and by abrogation of above-ceiling field prices. As to the past, the two are in large part synonymous; as to the future, only the latter will be applicable.Moreover, the Commission's computation of its area rates was not intended to reflect with complete fidelity either the producers' average costs or their sources of revenue. First, the actual average unit costs of casinghead and residue gas are substantially lower than the average unit costs of flowing gas well gas; [Footnote 108] yet the maximum rate for all associated and flowing gas was derived entirely from the latter. It follows that the producers' net revenues from sales of casinghead and residue gas will prove higher than the return formally permitted by the Commission. Second, producers receive significant payments for liquid hydrocarbons extracted by the pipelines during their processing of gas well gas. [Footnote 109] The maximum rate for new gas well gas Page 390 U. S. 820 evidently takes into account only part of these receipts, and that for old gas well gas disregards altogether this source of additional revenue. [Footnote 110] Third, some 20% of all the gas sold under the Commission's jurisdiction in the Permian Basin is controlled by Spraberry contracts, by which producers are paid for liquids processed by the pipelines from oil well gas. [Footnote 111] Much of the gas sold at prices below the applicable area maximum rate is governed by such contracts. [Footnote 112] This source of revenue was not incorporated in the Commission's calculation of the maximum rate for oil well gas. The Commission was unable to compute with precision the revenue obtained by producers from these disparate sources, but it estimated it to be "substantial." 34 F.P.C. at 1073.Finally, the producers have ignored the limits of the Commission's statutory authority. This Court has held, under the Federal Power Act, that the Commission may not abrogate existing contractual arrangements unless the contract price is so"low as to adversely affect the public interest -- as where it might impair the financial ability of the public utility to continue its Page 390 U. S. 821 service, cast upon other consumers an excessive burden, or be unduly discriminatory."FPC v. Sierra Pacific Power Co., 350 U. S. 348, 350 U. S. 355. It is not enough, the Court there held, that the contract price permits less than a fair return; the Commission may not, absent evidence of injury to the public interest, relieve a regulated company of "its improvident bargain." Ibid. The pertinent provisions of the Federal Power Act "are in all material respects substantially identical to the equivalent provisions of the Natural Gas Act." Id. at 350 U. S. 353. It follows that the Commission was here without authority to abrogate existing contract prices unless it first concluded that they "adversely affect the public interest." And see FPC v. Tennessee Gas Co., 371 U. S. 145, 371 U. S. 153. The Commission found that field prices of less than 9� per Mcf had such consequences, but it declined so to hold for all prices less than the two area maximum rates. [Footnote 113] There was no evidence before the Commission that required a different result, or that would now permit this Court to set aside the Commission's judgment.It does not, however, necessarily follow that the Commission was forbidden to consider, as it selected maximum Page 390 U. S. 822 rates from within the zone of reasonableness, the aggregate revenue deficiencies that might result from improvident contractual limitations. Within this zone, the Commission is permitted to give weight to the consequences upon producers, and thereby upon supply, of such limitations. Nonetheless, the Commission permissibly declined to make adjustments in the area rates because of prevailing contract prices. It recognized that such adjustments would increase the cost of natural gas to some groups of consumers in order simply to offset bargains previously obtained by others.The regulatory system created by the Act is premised on contractual agreements voluntarily devised by the regulated companies; it contemplates abrogation of these agreements only in circumstances of unequivocal public necessity. See United Gas Co. v. Mobile Gas Corp., 350 U. S. 332. There was here no evidence of financial or other difficulties that required the Commission to relieve the producers, even obliquely, from the burdens of their contractual obligations. We do not suggest that the Commission need not continuously evaluate the revenue and other consequences of its area rate structures. A principal advantage of area regulation is that it centers attention upon the industry's aggregate problems, and we may expect that, as the Commission's experience with area regulation lengthens, it will treat these important questions more precisely and efficaciously. We hold only that, in the circumstances here presented, the Commission's rate structure has not been shown to deny producers revenues consonant with just and reasonable rates. [Footnote 114] Page 390 U. S. 823VIThere remain for consideration various additional objections by the producers to the Commission's cost determinations, and to the sources of information from which those determinations were derived. These questions were not decided by the Court of Appeals. Although this Court ordinarily does not review an administrative record in the first instance, United States v. Great Northern Page 390 U. S. 824 R. Co., 343 U. S. 562, 343 U. S. 578; Seaboard Air Line R. Co. v. United States, 382 U. S. 154, 382 U. S. 157; there are persuasive reasons now to reach and decide these remaining issues. Almost eight years have elapsed since the Commission commenced these proceedings; we are convinced that producers' rates may be fairly and effectively regulated only after this and the other area proceedings now before the Commission have been successfully terminated. These issues were briefed and argued at length before this Court; very extended additional proceedings would doubtless be necessary in order to review them yet again.Moreover, the circumstances here parallel closely those in Chicago & N.W. R. Co. v. A. T. & S.F. R. Co., 387 U. S. 326. It was there said that the"presentation and discussion of evidence on cost issues constituted a dominant part of the lengthy administrative hearings, and the issues were thoroughly explored and contested before the Commission. Its factual findings and treatment of accounting problems concerned matters relating entirely to the special and complex peculiarities of the railroad industry. Our previous description of the Commission's disposition of these matters is sufficient to show that its conclusions had reasoned foundation and were within the area of its expert judgment."Id. at 387 U. S. 356. This reasoning is entirely applicable to the circumstances presented here; we hold, as did the Court there, that no useful purpose would be served by further proceedings in the Court of Appeals, and that there is no legal infirmity in the Commission's findings. [Footnote 115] Page 390 U. S. 825VIILastly, we reach questions of the validity of the refund obligations imposed by the Commission's orders. Two categories of refunds were created. First, producers must return amounts charged in excess of the applicable area rates, including quality and Btu adjustments, for periods following September 1, 1965, the date of effectiveness of the Commission's order. 34 F.P.C. at 243. The Commission imposed interest of 7% upon these refunds. [Footnote 116] Second, producers must refund amounts collected in excess of the applicable area rates, including quality and Btu adjustments, during previous periods in which their prices were subject Page 390 U. S. 826 to refund under § 4(e). Such obligations ultimately arise from filings by the producers under § 4(d) for increases in existing price schedules. The appropriate interest on these refunds was held to be that specified in each § 4(e) proceeding. [Footnote 117] Refunds in both categories were, under the Commission's order, to be measured by comparison of individual company price schedules with the applicable area rates.The Court of Appeals initially sustained the Commission's refund orders. 375 F.2d at 33. On petitions for rehearing, however, the court held that "no refund obligation may be imposed for a period in which there is a group revenue deficiency." Id. at 36. The court believed this to be an essential corollary of the Commission's asserted obligation to bring into balance group costs and group revenues; it would have permitted the Commission to order refunds only in periods in which aggregate revenue is found to exceed aggregate revenue requirements, and only as to the amount of the excess. The Commission was expected to apportion any refunds "on some equitable contract-by-contract basis." Ibid.We find the court's reasoning unpersuasive. The Commission may, in the course of its examination of the producers' financial positions, consider the possible refund consequences of its ratemaking orders, but its power to order refunds is not limited to situations in which group revenues exceed group revenue requirements. Area regulation offers a more expeditious method for the calculation of just and reasonable rates, and it will necessarily more rigorously focus the Commission's attention upon the producers' common problems. It does not, however, lessen the significance, or modify the Page 390 U. S. 827 incidents, of findings that specific rate levels are or are not just and reasonable within the meaning of §§ 4(a) and 5(a). A rate found to be unjust and unreasonable is declared by § 4(a) to be unlawful; if the rate has been the subject of a rate schedule modification under § 4(d), the Commission is empowered by § 4(e) to order its refund. We can see no warrant, either in the Act or in the terms of the Commission's orders, now to impose any additional limitations upon the Commission's authority; we hold that the Commission's discretion is not constricted in the fashion described by the Court of Appeals.Wisconsin v. FPC, supra, does not require a different result. It did not, as the Court of Appeals evidently supposed, create any imperative procedure for the disposition of refunds from locked-in rates. [Footnote 118] The Commission there held that, given its decision to begin a system of area regulation, it was not in the public interest"to reopen these proceedings, to determine a cost of service on the basis of completely new evidence and to attempt to determine rates on the basis of Phillips' individual cost of service."24 F.P.C. at 1009. No just and reasonable rates had been, or could then have been, calculated for Phillips' sales in the relevant periods. The Commission did not urge, [Footnote 119] and this Court did not hold, that Phillips' revenue deficiencies imposed a limitation upon the Commission's authority to require refunds; the Court merely sustained the Commission's refusal, in the Page 390 U. S. 828 circumstances there presented, to pursue further a lengthy and burdensome series of § 4(e) proceedings. See also Hunt Oil Co., 28 F.P.C. 623, and Wisconsin v. FPC, supra, at 373 U. S. 306, n. 15.The Commission reasonably concluded that the adoption of a system of refunds conditioned on findings as to aggregate area revenues would prove both inequitable to consumers and difficult to administer effectively. Such arrangements would require consumers to accede to unjust and unreasonable prices merely because other prices, perhaps ultimately benefiting other consumers, had proved improvident. Nor would these arrangements necessarily serve the interests of the improvident producers; they might merely permit more prudent competitors to escape refunds on concededly unlawful prices. [Footnote 120] We hold that the Commission's refund orders do not exceed or abuse its statutory authority. [Footnote 121]The motions for leave to adduce additional evidence are denied, the judgments of the Court of Appeals are affirmed in part and reversed in part, as herein indicated, and the cases are remanded to that court for further proceedings consistent with this opinion.It is so ordered | U.S. Supreme CourtPermian Basin Area Rate Cases, 390 U.S. 747 (1968)Permian Basin Area Rate CasesArgued December 5-7, 1967Decided May 1, 1968*390 U.S. 747SyllabusFollowing this Court's decision in Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, holding that independent producers are "natural gas compan[ies]" within the meaning of § 2(6) of the Natural Gas Act, the Federal Power Commission (FPC) struggled under a heavy administrative burden in attempting to determine whether producers' rates were just and reasonable under §§ 4(a) and 5(a) by examining each producer's cost of service. In 1960, the FPC announced that it would begin a series of proceedings under § 5(a) in which it would determine maximum producers' rates for each major producing area. A Statement of General Policy was issued by the FPC, asserting its authority to determine and require application throughout a producing area of maximum rates for producers' interstate sales, tentatively designating certain areas as producing units for rate regulation (three of which areas were consolidated for this proceeding), and providing two series of area guideline prices, for initial filings and for increased rates. This first area proceeding was initiated in 1960, and in 1965, the FPC issued its decision, devising for the Permian Basin area a rate structure with two area maximum prices, one for natural gas produced from gas wells and dedicated to interstate commerce after January 1, 1961, and the other, and lower, price for all other natural gas produced in the area. The FPC found that price Page 390 U. S. 748 could be an incentive for exploration and production of new gas well gas, while supplies of associated and dissolved gas and previously committed reserves of gas well gas were relatively unresponsive to price variations. The FPC aid not use prevailing field prices in calculating rates, but utilized composite cost data from published sources and from producers' cost questionnaires, establishing the national costs in 1960 of finding and producing gas well gas, and, for all other gas, deriving the just and reasonable rate from historical costs of gas well gas produced in the Permian Basin in 1960, with a local and historical emphasis. The uncertainties of joint cost allocation made it difficult to compute the cost of gas produced in association with oil, but the FPC found that the costs of such gas were less than those incurred in producing flowing gas well gas. Each maximum rate includes a return to the producer of 12% on average production investment based on the FPC's two series of cost computations. A system of quality and Btu adjustments was provided for. The following rates were determined: 16.5� per Mcf (including state production taxes) in Texas, and 15.5� (excluding state production taxes) in New Mexico, for gas well gas dedicated to interstate commerce after January 1, 1961; 14.5� per Mcf (including taxes) in Texas, and 13.5� per Mcf (excluding taxes) in New Mexico, for flowing gas, including oil well gas and gas well gas dedicated to interstate commerce before 1961; 9� per Mcf minimum for all gas of pipeline quality. The FPC declared that it would provide special relief in hardship cases; that small producers (annual national sales not above 10,000,000 Mcf) need not adjust prices for quality and Btu deficiencies; that it would require a moratorium until January 1, 1968, for filing under § 4(d) for prices above the applicable area maximum; that the use of indefinite escalation clauses to increase prevailing contract prices above the area maximum was thereafter prohibited, and that refunds were required of the difference between amounts collected by producers in periods subject to refund and the amounts permitted under the area rate. The Court of Appeals held that the FPC had authority to impose maximum area rates, sustained (but stayed enforcement of) the moratorium on § 4(d) filings, approved the two-price system and the exemption for small producers, but concluded that the requirements of FPC v. Hope Natural Gas Co., 320 U. S. 591, were not satisfied. It held that the FPC had not properly calculated the financial consequences of the quality and Btu adjustments, had not made essential findings as to aggregate revenue, and had not precisely indicated the circumstances in which individual producers could Page 390 U. S. 749 obtain relief from area rates. On rehearing, the court also held that refunds were permissible only if aggregate actual area revenues exceeded aggregate permissible area revenues, and only to the amount of the excess, apportioned on "some equitable contract-by-contract basis."Held:1. A presumption of validity attaches to each exercise of the FPC's expertise, and those who would overturn its judgment undertake "the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences." FPC v. Hope Natural Gas Co., supra, at 320 U. S. 602. Pp. 390 U. S. 766-767.2. The FPC has constitutional and statutory authority to adopt a system of area regulation and to impose supplementary requirements. Pp. 390 U. S. 768-790.(a) Area maximum rates, determined in conformity with the Natural Gas Act, and intended to balance investor and consumer interests, are constitutionally permissible. Pp. 390 U.S. 769-770.(b) In these circumstances, the FPC's broad guarantees of special relief were not inadequate or excessively imprecise. Pp. 390 U. S. 771-772.(c) The FPC did not abuse its discretion by its refusal to stay, pro tanto, enforcement of the area rates pending dispositions of producers' petitions for special relief. Pp. 390 U. S. 773-774.(d) Area regulation is consistent with the terms of the Act, and is within the statutory authority granted the FPC to carry out its broad responsibilities. Pp. 390 U. S. 774-777.(e) The FPC may, under §§ 5 and 16 of the Act, impose a moratorium on the filing under § 4(d) of proposed rates higher than those determined to be just and reasonable, and the relatively brief moratorium declared here did not exceed or abuse the FPC's authority. Pp. 390 U. S. 777-781.(f) Under the authority of § 5(a), the FPC permissibly restricted the application of indefinite escalation clauses. Pp. 390 U. S. 781-784.(g) The problems and public functions of small producers differ sufficiently to permit their separate classification, and the exemptions created for them by the FPC comport with the terms and purposes of its statutory responsibilities. Pp. 390 U. S. 784-787.(h) The regulatory area designated in this first area proceeding was both convenient and familiar, and the FPC was not obliged under these circumstances to include among the disputed Page 390 U. S. 750 issues questions of the proper size and composition of the regulatory area. Pp. 390 U. S. 787-789.3. The rate structure devised for natural gas produced in the Permian Basin did not exceed the FPC's authority, and the "heavy burden" of attacking the validity of that rate structure has not been satisfied. Pp. 390 U. S. 790-813.(a) The responsibilities of a reviewing court are to determine whether the FPC abused or exceeded its authority, whether each of the order's essential elements is supported by substantial evidence and whether the order may reasonably be expected to maintain financial integrity, attract needed capital and fairly compensate investors for risks they have assumed while appropriately protecting relevant public interests, both existing and foreseeable. Pp. 390 U. S. 791-792.(b) While field prices may have some relevance to the calculation of just and reasonable rates, the FPC was not compelled, on this record, to adopt field prices as the basis of its computations of area rates. Pp. 390 U. S. 792-795.(c) The two-price rate structure, which is permissible under the Act, will provide a useful incentive to exploration and prevent excessive producer profits, and thus protect both present and future consumer interests. Pp. 390 U. S. 795-799.(d) The FPC may employ "any formula or combination of formulas" it wishes, and is free "to make the pragmatic adjustments which may be called for by particular circumstances," as long as the consequences are not arbitrary or unreasonable. FPC v. Natural Gas Pipeline Co., 315 U. S. 575, 315 U. S. 586. P. 390 U. S. 800.(e) In calculating cost data for the two maximum rates by selections of differing geographical bases and time periods, the FPC did not abuse its authority, as its selections comported with the logic of its system of incentive pricing. Pp. 390 U. S. 800-803.(f) The FPC's use of flowing gas well gas cost data to calculate the rate for old gas, disregarding the costs of gas produced in association with oil, was essentially pragmatic, and its judgment was warranted under the circumstances. Pp. 390 U. S. 803-805.(g) The computation of the rate base by determining an average net production investment to which the FPC applied a constant rate of return was within the FPC's discretion, and was not arbitrary or unreasonable. Pp. 390 U. S. 805-806.(h) The selection of 12% as the proper rate of return for gas of pipeline quality was supported by substantial evidence that Page 390 U. S. 751 the rate will be likely to "maintain financial integrity, to attract capital, and to compensate investors for the risks assumed." Pp. 390 U. S. 806-808.(i) It was not impermissible for the FPC to treat quality adjustments as a risk of production, and its promulgation of quality standards was accompanied by adequate findings as to their revenue consequences. Pp. 390 U. S. 808-812.4. The FPC's rate structure has not here been shown to deny producers revenues consonant with just and reasonable rates. Pp. 390 U. S. 813-822.(a) The FPC need not provide formal findings in absolute dollar amounts as to revenue and revenue requirements; it is enough if it proffers findings and conclusions sufficiently detailed to permit reasoned evaluation of the purposes and implications of its order. P. 390 U. S. 814.(b) The FPC permissibly discounted the producers' reliance upon the relationship between gas reserves and production to establish the inadequacy of the rate structure. Pp. 390 U. S. 816-818.(c) The contention that, since the area maximum rates were derived from average costs, they cannot, without further adjustment, provide aggregate revenue equal to the producers' aggregate requirements has not been sustained. Pp. 390 U. S. 818-821.(d) The FPC's authority to abrogate existing contract prices depends upon its conclusion that they "adversely affect the public interest," and it properly applied that authority in setting a minimum area price of 9� per Mcf and in declining to apply it to prices less than the two area maximum rates. Pp. 390 U. S. 820-821.5. Since it has been almost eight years since these proceedings were commenced, and the remaining issues, which were not decided by the Court of Appeals, were briefed and argued at length in this Court, no useful purpose would be served by further proceedings in the Court of Appeals. Pp. 390 U. S. 823-824.6. The FPC's orders requiring refunds of (1) amounts charged in excess of the applicable area rates for periods following the effective date of its order and (2) amounts collected in excess of area rates during previous periods in which producers' prices were subject to refund under § 4(e), were within its authority. It reasonably concluded that the adoption of a system of refunds conditioned on findings as to aggregate area revenues would prove inequitable to consumers and difficult to administer effectively. Pp. 390 U. S. 825-828.375 F.2d 6 and 35, affirmed in part, reversed in part, and remanded. Page 390 U. S. 754 |
362 | 1980_80-180 | JUSTICE STEVENS delivered the opinion of the Court.We granted certiorari to decide whether the preclearance requirement of § 5 of the Voting Rights Act of 1965, as amended, [Footnote 1] applies to a reapportionment plan submitted to a Page 452 U. S. 132 Federal District Court by the legislative body of a covered jurisdiction [Footnote 2] in response to a judicial determination that the existing apportionment of its electoral districts is unconstitutional. Relying on East Carroll Parish School Board v. Marshall, 424 U. S. 636 (per curiam), the District Court held Page 452 U. S. 133 that the plan submitted to it in this case was a judicial plan, and thus excepted from the requirements of § 5. Relying on Wise v. Lipscomb, 437 U. S. 535, the Court of Appeals for the Fifth Circuit reversed; it held that, because the plan had been prepared by a legislative body, it was a legislative plan within the coverage of § 5. We are persuaded that Congress intended to require compliance with the statutory preclearance procedures under the circumstances of this case. Accordingly, we affirm the judgment of the Court of Appeals.The covered jurisdiction in this case is Kleberg County, a rural county in Texas. Under Texas law, a Commissioners Court, which is composed of four county commissioners presided over by the county judge, is authorized to govern Kleberg County. The county is divided periodically by the Commissioners Court into four commissioners' precincts, each of which elects a resident to the position of county commissioner. The county judge is elected at large. The county commissioners and the county judge serve 4-year terms. [Footnote 3]In January, 1978, four Mexican-American residents of Kleberg County brought this class action against various county officials alleging that the apportionment of the four commissioners' precincts denied individual residents of the larger precincts a vote of equal weight, and unconstitutionally diluted the voting strength of the county's substantial Mexican-American population. [Footnote 4] After a trial, [Footnote 5] the District Court rejected Page 452 U. S. 134 the plaintiffs' claim that the county's apportionment plan unconstitutionally diluted the voting power of Mexican-Americans as a class, but held that individual voters were denied equal representation because of the substantial disparity in the number of residents in each commissioners' precinct. [Footnote 6] The District Court therefore directed the county officials to submit a proposed reapportionment plan to the court within six weeks, and scheduled a hearing on the validity of the proposal for four weeks thereafter. [Footnote 7]Pursuant to the District Court's order, the Commissioners Court undertook the task of devising a new apportionment plan. The Commissioners Court employed Dr. Robert Nash, a statistician and the Dean of the College of Business at Texas A. & I. University, to prepare a new plan, instructing him to define the commissioners' precincts "on a one-person/one-vote basis." [Footnote 8] With one insignificant modification, [Footnote 9] Page 452 U. S. 135 the Commissioners Court officially adopted the plan prepared by Dr. Nash as the plan it would submit to the District Court.Respondents objected to the proposed plan. They challenged the data used by the Dean, they claimed that the plan diluted the voting strength of Mexican-Americans, and they contended that the Voting Rights Act required the county to obtain preclearance from the Attorney General of the United States or the United States District Court for the District of Columbia before the plan could become effective. [Footnote 10] After an evidentiary hearing, the District Court rejected both of respondents' factual contentions, and held as a matter of law that the Voting Rights Act did not require preclearance. The court entered an order approving the new plan and authorizing the Commissioners Court to conduct the 1980 primary and general elections under it. See App. to Pet. for Cert. A-21 to A-23.Without expressing any opinion with respect to the constitutionality of the new plan, the Court of Appeals vacated Page 452 U. S. 136 the District Court's order in a per curiam opinion. See 615 F.2d 1023 (1980). Reasoning that"[a] proposed reapportionment plan submitted by a local legislative body does not lose its status as a legislative, rather than court-ordered, plan merely because it is the product of litigation conducted in a federal forum,"id. at 1024, the Court of Appeals held that the Voting Rights Act required preclearance. The court thereafter denied petitioners' application for a stay pending filing and consideration of a petition for writ of certiorari. On August 14, 1980, however, JUSTICE POWELL, in his capacity as Circuit Justice, entered an order recalling the mandate and staying the judgment of the Court of Appeals pending disposition of the petition for certiorari. 448 U. S. 448 U.S. 1318. We granted that petition because the question presented is important and because the answer suggested by our prior opinions is not free of ambiguity. 449 U.S. 898. [Footnote 11]In this Court, the county officials contend that the Voting Rights Act does not apply to a plan that"(a) was prepared and presented in response to an order by the district court, (b) was not prepared by county officials, but by a third party expert, (c) was not adopted by the county before submission to the court, (d) was considered by the trial court to be court-ordered, and (e) was put into effect only after county officials were ordered to do so by the trial court. [Footnote 12]"We first consider the significance of the distinction between legislative and court-ordered plans as identified in our prior cases. We then review our decisions in East Carroll Page 452 U. S. 137 and Wise v. Lipscomb, on which the District Court and the Court of Appeals respectively placed primary reliance. Finally, we examine the statute and its legislative history.ITexas and its political subdivisions are covered by the Voting Rights Act. Briscoe v. Bell, 432 U. S. 404. [Footnote 13] Section 5 of that Act is applicable whenever a covered jurisdiction"shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972. . . ."42 U.S.C.1973c. A reapportionment plan is a "standard, practice, or procedure with respect to voting" within the meaning of § 5, Georgia v. United States, 411 U. S. 526, 411 U. S. 531-535, and it is undisputed that Kleberg County is a covered jurisdiction. What is in dispute is whether that jurisdiction did "enact or seek to administer" a proposed reapportionment plan when it presented that plan to a Federal District Court as a proposed remedy for a constitutional violation. If the statute does apply, then the plan must be precleared either by the Attorney General of the United States or the United States District Court for the District of Columbia before it may become effective. [Footnote 14] In such a preclearance proceeding, it is not sufficient to demonstrate that the new plan is constitutional; the covered jurisdiction also has the burden of demonstrating that the districting changes are not motivated by a discriminatory purpose and will not have an adverse impact on minority voters. See, e.g., City of Rome v. United States, 446 U. S. 156, 446 U. S. 172-173. Page 452 U. S. 138Two polar propositions are perfectly clear. First, the Act requires preclearance of new legislative apportionment plans that are adopted without judicial direction or approval. See Georgia v. United States, supra. Second, the Act's preclearance requirement does not apply to plans prepared and adopted by a federal court to remedy a constitutional violation. See Connor v. Johnson, 402 U. S. 690 (per curiam). [Footnote 15] Petitioners contend that the Act does not apply to this reapportionment plan because it is a court-ordered plan, while respondents argue that the Act does apply because the plan was prepared and submitted on behalf of the local legislative body.In prior reapportionment cases not arising under the Voting Rights Act, we have recognized important differences between legislative plans and court-ordered plans. Because "reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court," Chapman v. Meer, 420 U. S. 1, 420 U. S. 27, the Court has tolerated somewhat greater flexibility in the fashioning of legislative remedies for violation of the one-person, one-vote rule than when a federal court prepares its own Page 452 U. S. 139 remedial decree. Thus, in Chapman, we held that,"unless there are persuasive justifications, a court-ordered reapportionment plan of a state legislature must avoid use of multimember districts, and, as well, must ordinarily achieve the goal of population equality with little more than de minimis variation."Id. at 420 U. S. 26-27 (footnote omitted). [Footnote 16] In contrast, reapportionment plans prepared by legislative bodies may employ multimember districts and may result in greater population disparities than would be permitted in a court-ordered plan. See Connor v. Finch, 431 U. S. 407, 431 U. S. 414-415. Cf. Mahan v. Howell, 410 U. S. 315.In this case, we are concerned only with the question whether the reapportionment plan submitted to the District Court should be considered a legislative plan for purposes of preclearance under § 5. We are not presented with any question concerning the substantive acceptability of that plan. Nonetheless, we draw significant guidance from prior cases in which the substantive acceptability of a reapportionment plan, rather than the applicability of § 5, was at issue.IIIn neither of the cases on which the respective parties now place their primary reliance did the Court predicate its decision on the Voting Rights Act. In both of those cases, the question before the Court was whether it was error for the District Court to approve the inclusion of a multimember district in the reapportionment plan under review.In East Carroll Parish School Board v. Marshall, 424 U. S. 636 (per curiam), the plaintiff contended that population disparities among the parish's wards had unconstitutionally denied him the right to cast an effective vote for representatives to the school board and the police jury, the governing body of the parish. The District Court found that the Page 452 U. S. 140 parish's existing apportionment was unconstitutional. As a remedy, the court adopted a reapportionment plan, suggested by the police jury, that provided for at-large election of the members of both the police jury and the school board. Following the 1970 census, the District Court directed the police jury and school board to submit revised reapportionment plans. They resubmitted the plan calling for at-large elections, and the District Court again approved this plan. After a divided panel of the Court of Appeals affirmed the District Court's decision, [Footnote 17] the court, sitting en banc, reversed on the ground that the multimember arrangement approved by the District Court was unconstitutional. [Footnote 18]When we reviewed the case, we concluded that it was improper for the Court of Appeals to base its decision on a constitutional ground in view of the fact that the District Court had violated the frequently reaffirmed"rule that, when United States district courts are put to the task of fashioning reapportionment plans to supplant concededly invalid state legislation, single-member districts are to be preferred absent unusual circumstances."Id. at 424 U. S. 639. Thus, we held in East Carroll that the plan approved by the District Court was a judicial plan for purposes of substantive review.Although the issue was not raised by the parties, we also stated in East Carroll that the plan was a judicial plan for purposes of § 5 preclearance. Neither of the parties had argued that § 5's preclearance requirement was applicable in that case. However, the United States, as amicus curiae, had contended that, because the plan had been submitted by the Page 452 U. S. 141 legislative bodies of a covered jurisdiction, preclearance was required. We rejected that argument in a footnote:"[C]ourt-ordered plans resulting from equitable jurisdiction over adversary proceedings are not controlled by § 5. Had the East Carroll police jury reapportioned itself on its own authority, clearance under § 5 of the Voting Rights Act would clearly have been required. Connor v. Waller, 421 U. S. 656 (1975). However, in submitting the plan to the District Court, the jury did not purport to reapportion itself in accordance with the 1968 enabling legislation . . . which permitted police juries and school boards to adopt at-large elections. App. 56. Moreover, since the Louisiana enabling legislation was opposed by the Attorney General of the United States under § 5 of the Voting Rights Act, the jury did not have the authority to reapportion itself. . . . Since the reapportionment scheme was submitted and adopted pursuant to court order, the preclearance procedures of § 5 do not apply. Connor v. Johnson, 402 U. S. 690, 402 U. S. 691 (1971)."424 U.S. at 424 U. S. 638-639, n. 6. Petitioners rely heavily upon this footnote. While their reliance is understandable, the footnote is not dispositive in this case. The discussion of § 5 in East Carroll was dictum unnecessary to the decision in that case. It is, therefore, not controlling in this case, in which the impact of § 5 is directly placed in issue. [Footnote 19] Moreover, our subsequent decision in Wise Page 452 U. S. 142 v. Lipscomb, 437 U. S. 535, indicates that, at least to the extent that East Carroll addressed the Voting Rights Act, it must be narrowly limited to its particular facts.In Wise v. Lipscomb, the District Court held that the system of at-large election to the Dallas City Council unconstitutionally diluted the voting strength of black citizens. The court thereafter gave the City Council an opportunity to prepare and submit a new apportionment plan. In response, the City Council passed a resolution stating the Council's intention to pass an ordinance providing for the election of eight council members from single-member districts, and for the election of the three remaining members from the city at large. The District Court conducted a hearing "to determine the constitutionality of the new proposed plan'" and held that it was "a valid legislative Act." See 437 U.S. at 437 U. S. 538-539. The Court of Appeals reversed, relying on East Carroll to hold that it was error for the District Court merely to evaluate the new plan under constitutional standards without also deciding whether exceptional circumstances justified the inclusion of a multimember district in that judicially imposed reapportionment plan. See 551 F.2d 1043 (CA5 1977).The question this Court addressed was whether the District Court had committed error by failing to apply the usual presumption against multimember districts in judicial reapportionment plans. In his opinion announcing the judgment of the Court, JUSTICE WHITE, joined by JUSTICE STEWART, answered that question by holding that the presumption did not apply, because it is"appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure, rather than for the federal court to devise and order into effect its own plan."437 U.S. at 437 U. S. 540. JUSTICE WHITE distinguished East Carroll on the ground that the legislative bodies in that case had not purported to reapportion themselves and, indeed, had been without power to reapportion Page 452 U. S. 143 themselves under state law, because the Louisiana enabling statute had been invalidated under the Voting Rights Act. [Footnote 20] The Dallas City Council, in contrast, had acted within its inherent legislative authority in devising and submitting a reapportionment plan to replace the plan invalidated by the District Court in Wise. See 437 U.S. at 437 U. S. 545-546.JUSTICE POWELL's separate opinion, concurring in part and concurring in the judgment, was joined by the THE CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE REHNQUIST. JUSTICE POWELL agreed with JUSTICE WHITE's conclusion that the Dallas reapportionment plan was a legislative plan for purposes of the application of the presumption against multimember districts. However, relying upon Burns v. Richardson, 384 U. S. 73, JUSTICE POWELL disagreed with JUSTICE WHITE's suggestion that East Carroll had held that a proposed reapportionment plan may be considered legislative only if the legislative body that suggested the plan had authority to enact it under state law. 437 U.S. at 437 U. S. 548. [Footnote 21] In Page 452 U. S. 144 JUSTICE POWELL's view, the legislative body's authority under state law was irrelevant to the question before the Court. He explained that the critical difference between a legislative plan and a court-imposed plan for purposes of substantive review was that the former reflected the policy choices of the elected representatives of the people, whereas the latter represented the remedial directive of a federal court. [Footnote 22] Deference to the judgment of the legislative body was required even if that body lacked authority under state law to adopt the proposed reapportionment plan. [Footnote 23]In dissent, JUSTICE MARSHALL, joined by JUSTICE BRENNAN and JUSTICE STEVENS, expressed the opinion that Wise was indistinguishable from East Carroll, and that the Court of Appeals therefore had correctly applied the presumption Page 452 U. S. 145 against multimember districts. 437 U.S. at 437 U. S. 550-554. JUSTICE MARSHALL, however, agreed with the majority that it would not be proper to reach any question under the Voting Rights Act, because Texas had not been subject to the Act when the case was pending in the District Court. [Footnote 24]While it is clear that Wise, like East Carroll, did not require the Court to decide any statutory issue, the references to § 5 of the Voting Rights Act in JUSTICE WHITE's opinion announcing the judgment of the Court are nevertheless instructive. After pointing out that "the distinctive impact" of § 5 upon the power of the States to reapportion themselves must be observed in the normal case, 437 U.S. at 437 U. S. 541-542, JUSTICE WHITE stated:"Plans imposed by court order are not subject to the requirements of § 5, but, under that provision, a State or political subdivision subject to the Act may not 'enact or seek to administer' any 'different' voting qualification or procedure with respect to voting without either obtaining a declaratory judgment from the United States District Court for the District of Columbia that the proposed Page 452 U. S. 146 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' or submitting the change to the Attorney General and affording him an appropriate opportunity to object thereto. A new reapportionment plan enacted by a State, including one purportedly adopted in response to invalidation of the prior plan by a federal court, will not be considered 'effective as law,' Connor v. Finch, 431 U.S. at 431 U. S. 412; Connor v. Waller, 421 U. S. 656 (1975), until it has been submitted and has received clearance under § 5. Neither, in those circumstances, until clearance has been obtained, should a court address the constitutionality of the new measure. Connor v. Finch, supra; Connor v. Waller, supra."Id. at 437 U. S. 542 (footnote omitted).Neither East Carroll nor Wise decided the precise question that is now presented. Nonetheless, both JUSTICE WHITE's opinion and JUSTICE POWELL's opinion surely foreshadowed the holding we announce today. For both opinions indicate that the fact that the reapportionment plan before us was devised in response to an order of a federal court does not change its character as a legislative plan. In addition, JUSTICE POWELL's opinion indicates that the Commissioners Court's power under Texas law to adopt this plan should be irrelevant to the decision in this case.IIIThis is not a case in which the language of the controlling statute unambiguously answers the question presented. The Solicitor General, on behalf of the United States as amicus curiae, contends that a covered jurisdiction "seek[s] to administer" a new voting practice when it submits a redistricting plan to a district court as a proposed remedy for a constitutional violation. This is a plausible, but not an obviously correct, reading of the statutory language. For there is force to the contrary argument that Kleberg County had no intention Page 452 U. S. 147 to administer any new plan until after it was given legal effect by incorporation in a judicial decree. Arguably, therefore, the statute has no application before the District Court enters its decree, and because the Act does not require the District Court to have its decisions precleared, see Connor v. Johnson, 402 U. S. 690, once such a decree is entered, it is too late for the statute to qualify the county's duty to administer the plan as entered by the District Court. We find sufficient ambiguity in the statutory language to make it appropriate to turn to legislative history for guidance.In 1975, when Congress adopted the amendments that ultimately brought Texas and Kleberg County within the coverage of the Act, it directed special attention to § 5 and to the redistricting that would be required after the 1980 census. [Footnote 25] In its Report on S. 1279, the bill that extended the life of the Voting Rights Act beyond 1975, the Senate Committee on the Judiciary explained "the future need for the Act" by pointing out that redrafting of district lines to correct violations of the one-person, one-vote rule created opportunities to disenfranchise minority voters. [Footnote 26]"By providing that Section Page 452 U. S. 148 5 protections not be removed before 1985, S. 1279 would guarantee Federal protection of minority voting rights during the years that the post-census redistrictings will take place. [Footnote 27]"The Committee unambiguously stated that the statutory protections are to be available even when the redistricting is ordered by a federal court to remedy a constitutional violation that has been established in pending federal litigation. The Committee Report is crystal clear on this point:"Thus, for example, where a federal district court holds unconstitutional an apportionment plan which predates the effective date of coverage under the Voting Rights Act, any subsequent plan ordinarily would be subject to Section 5 review. In the typical case, the court either will direct the governmental body to adopt a new plan and present it to the court for consideration or else itself choose a plan from among those presented by various parties to the litigation. In either situation, the court should defer its consideration of -- or selection among -- any plans presented to it until such time as these plans have been submitted for Section 5 review. Only after such review should the district court proceed to any remaining fourteenth or fifteenth amendment questions that may be raised.""The one exception where Section 5 review would not ordinarily be available is where the court, because of Page 452 U. S. 149 exigent circumstances, actually fashions the plan itself, instead of relying on a plan presented by a litigant. This is the limited meaning of the 'court decree' exception recognized in Connor v. Johnson, 402 U. S. 690 (1971). Even in these cases, however, if the governmental body subsequently adopts a plan patterned after the court's plan, Section 5 review would be required, Connor v. Waller, supra. Furthermore, in fashioning the plan, the court should follow the appropriate Section 5 standards, including the body of administrative and judicial precedents developed in Section 5 cases."Senate Report at 18-19. [Footnote 28]The view expressed by the Committee is consistent with the basic purposes of the statute and with the well-settled rule that § 5 is to be given a broad construction. See, e.g., Dougherty County Board of Education v. White, 439 U. S. 32, 439 U. S. 38; United States v. Sheffield Board of Commissioners, 435 U. S. 110, 435 U. S. 122-123; Perkins v. Matthews, 400 U. S. 379, 400 U. S. 387. The preclearance procedure is designed to forestall the danger that local decisions to modify voting practices will impair minority access to the electoral process. [Footnote 29] The federal interest in preventing local jurisdictions from making changes that adversely affect the rights of minority voters is the same whether a change is required to remedy a constitutional violation or is merely the product of a community's Page 452 U. S. 150 perception of the desirability of responding to new social patterns. [Footnote 30]It is true, of course, that the federal interest may be protected by the federal district court presiding over voting right litigation, but sound reasons support the Committee's view that the normal § 5 preclearance procedures should nevertheless be followed in cases such as this. [Footnote 31] The procedures Page 452 U. S. 151 contemplated by the statute reflect a congressional choice in favor of specialized review either by the Attorney General of the United States or by the United States District Court for the District of Columbia. Because a large number of voting changes must necessarily undergo the preclearance process, centralized review enhances the likelihood that recurring problems will be resolved in a consistent and expeditious way. [Footnote 32] Moreover, if covered jurisdictions could avoid the normal preclearance procedure by awaiting litigation challenging a refusal to redistrict after a census is completed, the statute might have the unintended effect of actually encouraging delay in making obviously needed changes in district boundaries. The federal interest in evenhanded review of all changes in covered jurisdictions is furthered by the application of the statute in cases such as this.The application of the statute is not dependent on a showing that the county's proposed plan is defective in any way. Cf. United States v. Board of Supervisors of Warren County, 429 U. S. 642 (per curiam); Morris v. Gressette, 432 U. S. 491. The prophylactic purposes of the § 5 remedy are achieved by automatically requiring "review of all voting changes prior to implementation by the covered jurisdictions." Senate Report at 15 (emphasis supplied). [Footnote 33] It is therefore not material that the plan submitted by the Commissioners Page 452 U. S. 152 Court of Kleberg County in this case was actually prepared by an independent expert. His expertise may facilitate the satisfactory completion of the preclearance process, but it does not obviate the preclearance requirement itself. For just as the reasons for the county's decision to propose a new plan are irrelevant to the statutory preclearance requirement, so also is the particular method that is employed in formulating the plan that is submitted to the court on behalf of the county irrelevant.The application of the statute also is not dependent upon any showing that the Commissioners Court had authority under state law to enact the apportionment plan at issue in this case. [Footnote 34] As JUSTICE POWELL pointed out in Wise v. Lipscomb, 437 U. S. 535, the essential characteristic of a legislative plan is the exercise of legislative judgment. The fact that particular requirements of state law may not be satisfied before a plan is proposed to a federal court does not alter this essential characteristic. The applicability of § 5 to specific Page 452 U. S. 153 remedial plans is a matter of federal law that federal courts should determine pursuant to a uniform federal rule.As we construe the congressional mandate, it requires that whenever a covered jurisdiction submits a proposal reflecting the policy choices of the elected representatives of the people -- no matter what constraints have limited the choices available to them -- the preclearance requirement of the Voting Rights Act is applicable. [Footnote 35] It was therefore error for the District Court to act on the county's proposed plan before it had been submitted to the Attorney General or the United States District Court for the District of Columbia for preclearance.The judgment of the Court of Appeals is therefore affirmed.It is so ordered | U.S. Supreme CourtMcDaniel v. Sanchez, 452 U.S. 130 (1981)McDaniel v. SanchezNo. 80-180Argued March 2, 1981Decided June 1, 1981452 U.S. 130SyllabusAfter holding that the apportionment plan for precincts from which county commissioners were elected to serve on the Commissioners Court for Kleberg County, Tex., was unconstitutional because of substantial population variances in the precincts, the District Court directed county officials to submit a proposed reapportionment plan to the court. The Commissioners Court then employed an expert to prepare a new plan and subsequently adopted his plan and submitted it to the District Court. The court approved the plan and authorized the Commissioners Court to conduct 1980 primary and general elections under it, rejecting respondents' contention that § 5 of the Voting Rights Act of 1965 (Act) required the county, a jurisdiction covered by the Act, to obtain preclearance from either the Attorney General of the United States or the United States District Court for the District of Columbia before the plan could become effective. The Court of Appeals vacated the District Court's order, holding that"[a] proposed reapportionment plan submitted by a local legislative body does not lose its status as a legislative, rather than court-ordered, plan merely because it is the product of litigation conducted in a federal forum,"and that the Act required preclearance.Held: Congress intended to require compliance with the statutory preclearance procedures under the circumstances of this case. Whenever a covered jurisdiction submits a proposal reflecting the policy choices of the elected representatives of the people -- no matter what constraints have limited the choices available to them -- the preclearance requirement of the Act is applicable. Pp. 452 U. S. 137-153.(a) The statement in East Carroll Parish School Board v. Marshall, 424 U. S. 636 -- which held that a court-adopted reapportionment plan suggested by the local legislative body there involved was a judicial plan for purposes of substantive review -- that the plan was also a judicial plan for purposes of § 5 preclearance was dictum, and does not control this case. Pp. 452 U. S. 139-146.(b) The language of § 5 does not unambiguously answer the question, but the legislative history of the 1975 amendments of the Act shows that it was intended that the statutory protections are to be available even Page 452 U. S. 131 when redistricting by the governmental body is ordered by a federal court to remedy a constitutional violation that has been established in pending federal litigation. Pp. 452 U. S. 146-153.615 F.2d 1023, affirmed.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 452 U. S. 153. STEWART, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 452 U. S. 154. |
363 | 1990_90-5358 | JUSTICE SCALIA delivered the opinion of the Court.At about 7 a.m. on June 10, 1988, four United States marshals arrived at Thomas Braxton's door with a warrant for his arrest. One of the marshals, Deputy Jenkins, knocked. There was no answer, though they could hear someone inside. Thirty minutes later, the officers returned with a key to Braxton's apartment. Jenkins knocked again; and again received no answer. He unlocked the door, only to find it secured with a chain-lock as well -- which he broke by kicking the door open."[C]ontemporaneous with the door opening, a gunshot was fired through the door opening. The gunshot lodged in the front door just above the doorknob. That's the outside of the front door."App. 17. The door slammed shut, and the officers withdrew. A moment later, Jenkins again kicked the door open. Another shot was fired, this too lodging in the front of the door, about five feet from the floor. The officers again withdrew, and the area was barricaded. Braxton, who had fired the shots, eventually gave himself up, and was charged in a three-count indictment with (1) an attempt to kill a deputy United States marshal (18 U.S.C. § 1114), (2) assault on a deputy marshal (18 U.S.C. § 111), and (3) the use of a firearm during a crime of violence (18 U.S.C. § 924(c)).These were the facts as presented by the Government during the course of a plea hearing, pursuant to Rule 11(f) of the Federal Rules of Criminal Procedure, at which Braxton pleaded guilty to the assault and firearm counts of the indictment, and not guilty to the attempt to kill count. The pleas Page 500 U. S. 346 were not made pursuant to any plea agreement, and the Government did not dismiss the attempt to kill count at the plea hearing. The purpose of the hearing was simply to provide a factual basis for accepting Braxton's guilty pleas.Braxton agreed with the facts as the Government characterized them, with two small caveats, neither of which is significant for purposes of this case. Subject to those "modifications," Braxton agreed that "what the Government say[s] that it could prove [happened] happened." App.19. With this factual basis before it, the District Court accepted Braxton's guilty pleas, specifically noting that "there is no plea agreement." Ibid.Two months later, Braxton was sentenced. Relying upon a proviso in § 1B1.2(a) of the U.S. Sentencing Comm'n, Guidelines Manual (1990), and over Braxton's objections, the District Court in essence sentenced Braxton as though he had been convicted of attempted killing, the only charge to which Braxton had not confessed guilt. The Court of Appeals upheld the sentence, 903 F.2d 292 (CA4 1990), and we granted certiorari. 498 U.S. 966, (1990).IOrdinarily, a court pronouncing sentence under the Guidelines applies the "offense guideline section . . . most applicable to the offense of conviction." § 1B1.2(a). There is, however, one "limited" exception to this general rule, § 1B1.2, Commentary, n. 1, consisting of the following proviso to § 1B1.2(a):"Provided, however, in the case of conviction by a plea of guilty or nolo contendere containing a stipulation that specifically establishes a more serious offense than the offense of conviction, [the court shall apply the guideline in such chapter] most applicable to the stipulated offense."Braxton's conviction was no doubt by a "plea of guilty." This case presents the questions whether it was also a conviction Page 500 U. S. 347 by a plea (1) "containing a stipulation" that (2) "specifically establishes" that Braxton attempted to kill the marshals who had been sent to arrest him. The Courts of Appeals have divided on the meaning of the first phrase, "containing a stipulation," and Braxton argues that, however that phrase is read, the court below misapplied the second, "specifically establishes a more serious offense." We consider each contention in turn.AAs the District Court noted, there was no plea agreement in this case. Braxton argues that his plea did not "contai[n]" a stipulation because, by "containing a stipulation," the Guidelines mean a stipulation that is part of a formal plea agreement. Some Circuits to consider the question have agreed with that interpretation, believing that the "stipulation" must be part of the "quid pro quo" for the Government's agreement not to charge a higher offense. See, e.g., United States v. McCall, 915 F.2d 811, 816, n. 4 (CA2 1990); United States v. Warters, 885 F.2d 1266, 1273, n. 5 (CA5 1989). But as the Government points out, § 1B1.2 does not, by its terms, limit its application to stipulations contained in plea agreements; the language speaks only of "plea[s] . . . containing a stipulation." Since, the Government argues, any formal assent to a set of facts constitutes a stipulation, Braxton's guilty plea "contain[ed] a stipulation" upon which the court could rely in setting his base-offense level. That was the approach of the court below.A principal purpose for which we use our certiorari jurisdiction, and the reason we granted certiorari in the present case, is to resolve conflicts among the Circuit Courts of Appeals and state courts concerning the meaning of provisions of federal law. See this Court's Rule 10.1. With respect to federal law apart from the Constitution, we are not the sole body that could eliminate such conflicts, at least as far as their continuation into the future is concerned. Obviously, Congress itself can eliminate a conflict concerning a Page 500 U. S. 348 statutory provision by making a clarifying amendment to the statute, and agencies can do the same with respect to regulations. Ordinarily, however, we regard the task as initially and primarily ours. Events that have transpired since our grant of certiorari in the present case have focused our attention on the fact that this may not be Congress' intent with respect to the Sentencing Guidelines.After we had granted Braxton's petition for certiorari, the Commission requested public comment on whether § 1B1.2(a) should be "amended to provide expressly that such a stipulation must be as part of a formal plea agreement," 56 Fed.Reg. 1891 (1991), which is the precise question raised by the first part of Braxton's petition here. The Commission took this action pursuant to its statutory duty "periodically [to] review and revise" the Guidelines. 28 U.S.C. § 994(o). The Guidelines are, of course, implemented by the courts, so in charging the Commission "periodically [to] review and revise" the Guidelines, Congress necessarily contemplated that the Commission would periodically review the work of the courts, and would make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest. This congressional expectation alone might induce us to be more restrained and circumspect in using our certiorari power as the primary means of resolving such conflicts; but there is even further indication that we ought to adopt that course. In addition to the duty to review and revise the guidelines, Congress has granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect, 28 U.S.C. § 994(u). This power has been implemented in Guideline § 1B1.10, which sets forth the amendments that justify sentence reduction.We choose not to resolve the first question presented in the current case, because the Commission has already undertaken a proceeding that will eliminate circuit conflict over the Page 500 U. S. 349 meaning of § 1B1.2, and because the specific controversy before us can be decided on other grounds, as set forth below.BUnlike the first question discussed above, which presents a general issue of law on which the circuits have fallen into disagreement, Braxton's second question is closely tied to the facts of the present case. For the proviso in § 1B1.2(a) to apply, there must be not simply a stipulation, but a stipulation that "specifically establishes" a more serious offense. Thus, even assuming that Braxton's agreement to facts constituted a "stipulation" for purposes of § 1B1.2(a), unless it "specifically established" an attempt to kill under 18 U.S.C. § 1114, the sentence based upon the guideline for that offense cannot stand.For Braxton to be guilty of an attempted killing under 18 U.S.C. § 1114, he must have taken a substantial step towards that crime, and must also have had the requisite mens rea. See E. Devitt, C. Blackmar, & M. Wolff, Federal Jury Practice and Instructions § 14.21 (1990 Supp.). A stipulation by Braxton that he shot "at a marshal," without any qualification about his intent, would suffice to establish a substantial step towards the crime, and perhaps the necessary intent. The stipulation here, however, was not that Braxton shot "at a marshal." As the Government appears to concede, Brief for United States 19, n. 10, citing United States v. Guerrero, 863 F.2d 245, 248 (CA2 1988), the only stipulation relevant to our inquiry is (at most) that which occurred at the Rule 11(f) hearing, since § 1B1.2 refers not to a stipulation in isolation, but to "a plea . . . containing a stipulation." (Emphasis added.) All Braxton agreed to at the Rule 11(f) hearing was that he shot "through the door opening [and that] [t]he gunshot lodged in the front door just above the doorknob. That [is] the outside of the front door." App. 17.The Court of Appeals affirmed the District Court's judgment that this "specifically established" a violation of 18 Page 500 U. S. 350 U.S.C. § 1114, primarily because it believed that at least the District Court was not "clearly erroneous" in so concluding. That is, of course, the standard applied, when reviewing a sentence, to findings of fact. 18 U.S.C. § 3742(e). Determination of the meaning and effect of a stipulation, however, is not a factual finding: we review that just as we would review a determination of meaning and effect of a contract, or consent decree, or proffer for summary judgment. See, e.g., Washington Hospital v. White, 889 F.2d 1294, 1299 (CA3 1989); Frost v. Davis, 346 F.2d 82, 83 (CA5 1965). The question, therefore, is not whether there is any reasonable reading of the stipulation that supports the District Court's determination, but whether the District Court was right.We think it was not. The stipulation does not say that Braxton shot at the marshals; any such conclusion is an inference at best, and an inference from ambiguous facts. To give just one example of the ambiguity: the Government proffered (and Braxton agreed) that Braxton shot "through the door opening," and that the bullet lodged in the "front [of the] door." App. 17. It is difficult to understand how both of these facts could possibly be true, at least on an ordinary understanding of what "door opening" consists of. One does not shoot through a door opening and hit the door, any more than one walks through a door opening and bumps into the door. But in any case, if one accepts the stipulation that both shots lodged in the front of the (inward-opening) door, it would be unreasonable to conclude that Braxton was shooting at the marshals unless it was also stipulated that the marshals had entered the room. That was not stipulated, and does not appear to have been the fact. But even if one could properly conclude that the stipulation "specifically established" that Braxton had shot "at the marshals," it would also have to have established that he did so with the intent of killing Page 500 U. S. 351 them. * Not only is there nothing in the stipulation from which that could even be inferred, but the statements of Braxton's attorney at the hearing flatly deny it."Of course, there is lurking in the background the allegation of an attempted murder. You can gather from Mr. Braxton's position, and probably from [the government's] statement of facts, that Mr. Braxton admits he assaulted someone and used a handgun, but, obviously, is not admitting he attempted to specifically murder anyone."Id. at 22. Braxton claims to have intended to frighten the marshals, not shoot them, and that claim is certainly consistent with the stipulation before us.We of course do not know what actually happened that morning in June, but that is not the question before us. The only issue for resolution is whether a stipulation that, at best, supports two reasonable readings -- one that Braxton shot across the room at the marshals when they entered, and one that he shot across the room before they entered to frighten them off -- is a stipulation that "specifically establishes" that Braxton attempted to murder one of the marshals. It does not.The opinion of the Court of Appeals is reversed, and the cases remanded for proceedings consistent with this opinion.It is so ordered | U.S. Supreme CourtBraxton v. United States, 500 U.S. 344 (1991)Braxton v. United StatesNo. 90-5358Argued March 18, 1991Decided May 28, 1991500 U.S. 344SyllabusAt a hearing at which petitioner Braxton pleaded guilty to assault and firearm counts, but not guilty to the more serious charge of attempting to kill a United States marshal, the Government presented facts -- to which Braxton agreed -- showing, inter alia, that, after each of two instances in which marshals kicked open his door, Braxton fired a gunshot "through the door opening," and the shots lodged in the door's front. Over Braxton's objections, the District Court later sentenced him as though he had been convicted of the attempt to kill count, relying on a proviso in § 1B1.2(a) of the U.S. Sentencing Comm'n Guidelines Manual. Although § 1B1.2(a) ordinarily requires a court to apply the Sentencing Guideline most applicable to the offense of conviction, the proviso allows the court, in the case of conviction by a guilty plea "containing a stipulation" that "specifically establishes" a more serious offense, to apply the Guideline most applicable to the stipulated offense. The Court of Appeals upheld Braxton's sentence.Held: The court below misapplied the § 1B1.2(a) proviso. Pp. 500 U. S. 346-351.(a) This Court will not resolve the question whether Braxton's guilty plea "contain[ed] a stipulation" within the proviso's meaning. The Commission -- which was specifically charged by Congress with the duty to review and revise the Guidelines and given the unusual explicit power to decide whether and to what extent its amendments reducing sentences would be given retroactive effect -- has already undertaken a proceeding that will eliminate a conflict among the Federal Circuits over the precise question at issue here. Moreover, the specific controversy before the Court can be decided on other grounds. Pp. 500 U. S. 347-349.(b) Assuming that Braxton's agreement to the Government's facts constituted a "stipulation," that stipulation does not "specifically establis[h]" an attempt to kill, as is required by the proviso. At best, the stipulation supports two reasonable readings -- one that Braxton shot across the room at the marshals when they entered, and one that he shot before they entered to frighten them off. There is nothing in the latter reading from which an intent to kill -- a necessary element of the attempt to kill count -- could even be inferred. Pp. 500 U. S. 349-351.903 F.2d 292 (4th Cir.1990), reversed and remanded. Page 500 U. S. 345SCALIA, J., delivered the opinion for a unanimous Court. |
364 | 1985_84-6859 | JUSTICE WHITE delivered the opinion of the Court.Petitioner Ronald Skipper was convicted in a South Carolina trial court of capital murder and rape. The State sought the death penalty, and a separate sentencing hearing was held before the trial jury under S.C.Code § 16-3-20 (1985), which provides for a bifurcated trial and jury sentencing in capital cases. Following introduction by the State of evidence in aggravation of the offense (principally evidence of petitioner's history of sexually assaultive behavior), petitioner presented as mitigating evidence his own testimony and that of his former wife, his mother, his sister, and his grandmother. This testimony, for the most part, concerned Page 476 U. S. 3 the difficult circumstances of his upbringing. Petitioner and his former wife, however, both testified briefly that petitioner had conducted himself well during the 7 1/2 months he spent in jail between his arrest and trial. Petitioner also testified that, during a prior period of incarceration, he had earned the equivalent of a high school diploma, and that, if sentenced to life imprisonment rather than to death, he would behave himself in prison, and would attempt to work so that he could contribute money to the support of his family.Petitioner also sought to introduce testimony of two jailers and one "regular visitor" to the jail to the effect that petitioner had "made a good adjustment" during his time spent in jail. The trial court, however, ruled that, under the South Carolina Supreme Court's decision in State v. Koon, 278 S.C. 528, 298 S.E.2d 769 (1982) (Koon I), such evidence would be irrelevant, and hence inadmissible. The decision in Koon I, the judge stated, stood for the rule that "whether [petitioner] can adjust or not adjust" was "not an issue in this case." App. 11.After hearing closing arguments -- during the course of which the prosecutor contended that petitioner would pose disciplinary problems if sentenced to prison, and would likely rape other prisoners, id. at 13-14 -- the jury sentenced petitioner to death. On appeal, petitioner contended that the trial court had committed constitutional error in excluding the testimony of the jailers and the visitor: the testimony of these witnesses, petitioner argued, would have constituted relevant mitigating evidence, and exclusion of such evidence was improper under this Court's decisions in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982). The Supreme Court of South Carolina rejected petitioner's contention, stating:"The trial judge properly refused to admit evidence of [petitioner's] future adaptability to prison life. State v. Koon, supra. However, evidence of his past adaptability was admitted through testimony of his former wife, Page 476 U. S. 4 his mother, and his own testimony. This contention is without merit."285 S.C. 42, 48, 328 S.E.2d 58, 61-62 (1985). We granted certiorari, 474 U.S. 900 (1985), to consider petitioner's claim that the South Carolina Supreme Court's decision is inconsistent with this Court's decisions in Lockett and Eddings, and we now reverse.There is no disputing that this Court's decision in Eddings requires that, in capital cases,"'the sentencer . . . 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 that the defendant proffers as a basis for a sentence less than death.'"Eddings, supra, at 455 U. S. 110 (quoting Lockett, supra, at 438 U. S. 604 (plurality opinion of BURGER, C.J.)) (emphasis in original). Equally clear is the corollary rule that the sentencer may not refuse to consider or be precluded from considering "any relevant mitigating evidence." 455 U.S. at 455 U. S. 114. These rules are now well established, and the State does not question them.Accordingly, the only question before us is whether the exclusion from the sentencing hearing of the testimony petitioner proffered regarding his good behavior during the over seven months he spent in jail awaiting trial deprived petitioner of his right to place before the sentencer relevant evidence in mitigation of punishment. It can hardly be disputed that it did. The State does not contest that the witnesses petitioner attempted to place on the stand would have testified that petitioner had been a well-behaved and well-adjusted prisoner, nor does the State dispute that the jury could have drawn favorable inferences from this testimony regarding petitioner's character and his probable future conduct if sentenced to life in prison. Although it is true that any such inferences would not relate specifically to petitioner's culpability for the crime he committed, see Koon I, supra, at 536, 298 S.E.2d at 774, there is no question but that such inferences would be "mitigating" in the sense that Page 476 U. S. 5 they might serve "as a basis for a sentence less than death." Lockett, supra, at 438 U. S. 604. Consideration of a defendant's past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing:"any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose."Jurek v. Texas, 428 U. S. 262, 275 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). The Court has therefore held that evidence that a defendant would in the future pose a danger to the community if he were not executed may be treated as establishing an "aggravating factor" for purposes of capital sentencing, Jurek v. Texas, supra; see also Barefoot v. Estelle, 463 U. S. 880 (1983). Likewise, evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. [Footnote 1] Under Eddings, such evidence may not be excluded from the sentencer's consideration.The State advances several arguments as to why the exclusion of petitioner's proffered evidence was, nonetheless, not erroneous. First, the State contends that the trial court ruled only that petitioner's witnesses could not offer incompetent lay opinion testimony regarding petitioner's ability to adjust to prison life in the future. Eddings, the State argues, does not displace reasonable state law rules regarding the competency of testimony. The record does not, however, support the State's contention that the trial court's Page 476 U. S. 6 ruling was no more than an evenhanded application of rules restricting the use of opinion testimony. It is true that petitioner's request for a ruling on the admissibility of the testimony of the two jailers and the "regular visitor" was immediately preceded by an attempt to introduce his former wife's opinion (ruled inadmissible by the trial judge, App. 10) regarding his prospects for adjustment to prison life. In seeking a ruling on the testimony of the three witnesses at issue here, however, petitioner made it clear that he expected them "to testify that [petitioner] has made a good adjustment" to jail. Id. at 11 (emphasis added). Defense counsel was not offering opinion testimony regarding future events. Under these circumstances, any ruling premised on the assumption that petitioner planned to present incompetent opinion testimony would have been -- as the State conceded at oral argument -- a "mistake." Such a misunderstanding could by no means justify the exclusion of nonopinion evidence bearing on the defendant's ability to adjust to prison life.Second, the State echoes the South Carolina Supreme Court in arguing that the trial court's ruling was not improper, because it did not prevent petitioner from introducing evidence of past good conduct in jail for purposes of establishing his good character, but only foreclosed the introduction of "irrelevant" evidence of his future adaptability to prison life. There is no clear support for this contention in the record of this case, as the trial court did not explicitly rely on any such distinction, and appears to have excluded petitioner's evidence of good conduct for any purpose whatsoever. The State's proposed distinction between use of evidence of past good conduct to prove good character and use of the same evidence to establish future good conduct in prison seems to be drawn from the decision of the South Carolina Supreme Court in another case altogether, State v. Koon, 285 S.C. 1, 328 S.E.2d 625 (Koon II), cert. denied, 471 U. S. 1036 (1985). There, the court stated that although"future Page 476 U. S. 7 adaptability to prison [is] irrelevant evidence because it does not bear on a defendant's character, prior record, or the circumstances of his offense[,] . . . [p]ast behavior in prison does bear on a defendant's character and, therefore, is relevant."285 S.C. at 3, 328 S.E.2d at 626. This distinction is elusive. As we have explained above, a defendant's disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is, by its nature, relevant to the sentencing determination. [Footnote 2] Accordingly, the precise meaning and practical significance of the decision in Koon II and of the State's argument is difficult to assess. Assuming, however, that the rule would, in any case, have the effect of precluding the defendant from introducing otherwise admissible evidence for the explicit purpose of convincing the jury that he should be spared the death penalty because he would pose no undue danger to his jailers or fellow prisoners, and could lead a useful life behind bars if sentenced to life imprisonment, the rule would not pass muster under Eddings. Since the trial court's ruling in this case -- whether or not it can credibly be said to be consistent with Koon II, at least had this effect, it cannot stand under Eddings.Finally, the State seems to suggest that exclusion of the proffered testimony was proper because the testimony was merely cumulative of the testimony of petitioner and his former Page 476 U. S. 8 wife that petitioner's behavior in jail awaiting trial was satisfactory, and of petitioner's testimony that, if sentenced to prison rather than to death, he would attempt to use his time productively, and would not cause trouble. We think, however, that characterizing the excluded evidence as cumulative and its exclusion as harmless is implausible on the facts before us. The evidence petitioner was allowed to present on the issue of his conduct in jail was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of more disinterested witnesses -- and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges -- would quite naturally be given much greater weight by the jury. Nor can we confidently conclude that credible evidence that petitioner was a good prisoner would have had no effect upon the jury's deliberations. The prosecutor himself, in closing argument, made much of the dangers petitioner would pose if sentenced to prison, and went so far as to assert that petitioner could be expected to rape other inmates. Under these circumstances, it appears reasonably likely that the exclusion of evidence bearing upon petitioner's behavior in jail (and hence, upon his likely future behavior in prison) may have affected the jury's decision to impose the death sentence. Thus, under any standard, the exclusion of the evidence was sufficiently prejudicial to constitute reversible error.The exclusion by the state trial court of relevant mitigating evidence impeded the sentencing jury's ability to carry out its task of considering all relevant facets of the character and record of the individual offender. The resulting death sentence cannot stand, although the State is of course not precluded from again seeking to impose the death sentence, provided that it does so through a new sentencing hearing at which petitioner is permitted to present any and all relevant mitigating evidence that is available. Eddings, 455 U.S. at 455 U. S. 117. The judgment of the Supreme Court of South Carolina Page 476 U. S. 9 is therefore reversed insofar as it affirms the death sentence, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered | U.S. Supreme CourtSkipper v. South Carolina, 476 U.S. 1 (1986)Skipper v. South CarolinaNo. 84-6859Argued February 24, 1986Decided April 29, 1986476 U.S. 1SyllabusPetitioner was convicted of capital murder and rape after a jury trial in a South Carolina court. The State sought the death penalty, and a separate sentencing hearing was held before the trial jury. Following the State's introduction of evidence in aggravation of the offense, petitioner presented as mitigating evidence his own testimony and that of his former wife, his mother, his sister, and his grandmother. He then sought to introduce testimony of two jailers and a "regular visitor" to the effect that he had "made a good adjustment" during the 7 1/2 months he had spent in jail between his arrest and trial. The trial court ruled such evidence irrelevant and inadmissible, and petitioner was sentenced to death. The South Carolina Supreme Court affirmed the death sentence, rejecting petitioner's contention that the trial court had committed constitutional error in excluding the testimony of the jailers and visitor.Held: The trial court's exclusion from the sentencing hearing of the testimony of the jailers and the visitor denied petitioner his right to place before the sentencing jury all relevant evidence in mitigation of punishment. Lockett v. Ohio, 438 U. S. 586; Eddings v. Oklahoma, 455 U. S. 104. Pp. 476 U. S. 4-9.(a) The record does not support the State's contention that the trial court's ruling was no more than an application of rules restricting the use of lay opinion testimony. Pp. 476 U. S. 5-6.(b) Nor is there any support in the record for the State's contention that the trial court's ruling was not improper because it did not prevent petitioner from introducing evidence of past good conduct in jail, but Page 476 U. S. 2 only foreclosed the introduction of "irrelevant" evidence of his future adaptability to prison life. Pp. 476 U. S. 6-7.(c) And, contrary to the State's suggestion, it is implausible, on the facts, to characterize the excluded evidence as cumulative, and its exclusion as harmless error. Pp. 476 U. S. 7-9.285 S.C. 42, 328 S.E.2d 68, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 9. |
365 | 1984_84-592 | JUSTICE WHITE delivered the opinion of the Court.The State of Vermont collects a use tax when cars are registered with it. The tax is not imposed if the car was purchased in Vermont and a sales tax has been paid. The tax is also reduced by the amount of any sales or use tax paid to another State if that State would afford a credit for taxes paid to Vermont in similar circumstances. The credit is available, however, only if the registrant was a Vermont resident at the time he paid the taxes. Appellants, who bought cars outside of Vermont before becoming residents of that State, challenge the failure to grant them a similar Page 472 U. S. 16 credit. We agree that this failure denies them the equal protection of the laws.IAppellants' complaint, which was dismissed before an answer was filed, sets out the following facts. In December, 1980, appellant Norman Williams purchased a new car in Illinois, paying a five-percent sales tax. Three months later, he moved to Vermont, bringing the car with him. He subsequently attempted to register the car in Vermont without paying the required use tax. The Vermont Department of Motor Vehicles refused to register the car. Williams responded by suing in the Federal District Court for the District of Vermont, which, relying on 28 U.S.C. § 1341, dismissed his complaint. Williams then paid the tax, which came to $172, unsuccessfully sought a refund from the Department of Motor Vehicles, and filed the present suit in Vermont Superior Court. [Footnote 1]The complaint alleged a number of constitutional defects in the State's failure to afford appellants credit for the sales taxes they had paid. One of them was that the Equal Protection Clause of the Fourteenth Amendment forbade the State to deny the credit to them while providing it in the case of vehicles "acquired outside the state by a resident of Vermont." Vt.Stat.Ann., Tit. 32, § 8911(9) (1981).The Superior Court dismissed the complaint. Acknowledging that the use tax "does not afford, on its face, equal treatment to residents and nonresidents who purchase cars out-of-state," App. 14, the court considered the relevant inquiry to be "whether discrimination occurs within the state," id. at 15. It saw no such discrimination, reasoning that, in Page 472 U. S. 17 practice, Vermont residents always pay the use tax, because reciprocal States excuse payment of the sales tax, and therefore there is no out-of-state payment to credit the use tax against. The court also found no burden on the right to travel, no violation of the Privileges and Immunities Clause, and no interference with interstate commerce.The Vermont Supreme Court affirmed, 144 Vt. 649, 478 A.2d 993 (1984), by citation to another decision handed down the same day, Leverson v. Conway, 144 Vt. 523, 481 A.2d 1029, appeal dism'd for want of a substantial federal question, 469 U.S. 926 (1984), pet. for rehearing pending, No. 84-315. Leverson was an essentially identical case brought by a former Wisconsin resident who, like appellants, had purchased a car in his home State and paid a sales tax, then moved to Vermont and been obliged to pay the use tax. The Vermont Supreme Court upheld the tax. First, it rejected the argument that denying a credit for a sales tax paid to another State infringed the right to travel. The use tax did not impose a penalty for moving to Vermont -- the obligation was incurred only by registering one's car there. Absent such a penalty, and given that there is no fundamental right to have or to register a car, the Equal Protection Clause required only minimal scrutiny. The statute was rationally related to the legitimate state interest in raising revenue to maintain and improve the highways, and rationally placed the burden on those who used them. The exemption for residents who purchased cars in reciprocal States encouraged purchases within Vermont by residents of those States. This goal would not be furthered by granting an exemption to new residents who have already purchased cars elsewhere. The court went on to hold that the Privileges and Immunities Clause did not come into play, because no right, such as the right to travel, qualifying as a privilege or immunity was involved. It also rejected a Commerce Clause challenge, viewing this as a straightforward use tax, imposed only on goods that had come to rest in Vermont. Page 472 U. S. 18The Vermont Supreme Court denied rehearing, and appellants brought this appeal. We noted probable jurisdiction, 469 U.S. 1085 (1984), and we now reverse.IIThe Vermont Motor Vehicle Purchase and Use Tax, Vt.Stat.Ann., Tit. 32, ch. 219 (1981), is distinct from the State's general sales and use taxes. [Footnote 2] It is intended to"improve and maintain the state and interstate highway systems, to pay the principal and interest on bonds issued for the improvement and maintenance of those systems and to pay the cost of administering this chapter."§ 8901. The revenue from the tax goes into a distinct "transportation fund." § 8912. The tax is of two sorts: a four-percent sales tax is imposed at the time of purchase of a motor vehicle in Vermont by a Vermont resident, § 8903(a), and a four-percent use tax is imposed upon registration of a motor vehicle in Vermont unless the Vermont sales tax was paid, § 8903(b). [Footnote 3] A number of vehicles are exempt, including, for example, those owned by a State, the United States, or charitable institutions, and those transferred within a family. See generally § 8911. Prior to September 1, 1980, the statute also exempted"pleasure cars, the owners of which were not residents of this State at the time of purchase and had registered and used the vehicle for at least thirty days in a state or province other than Vermont."Vt.Stat.Ann., Tit. 32, § 8911(6) (1970 and Supp.1981) (repealed). That provision would have exempted Page 472 U. S. 19 appellants from the use tax. Since its repeal, registrants who purchased their cars out-of-state when not Vermont residents have had to pay the use tax, regardless of whether they already paid a sales tax in another jurisdiction on the same car.One other exemption is critical to this case. Section 8911(9) provides that the tax does not apply to"pleasure cars acquired outside the state by a resident of Vermont on which a state sales or use tax has been paid by the person applying for a registration in Vermont, providing that the state or province collecting such tax would grant the same pro-rata credit for Vermont tax paid under similar circumstances. If the tax paid in another state is less than the Vermont tax the tax due shall be the difference."There is some dispute as to the reach of this provision. Appellants assert that, in light of this provision, had they been residents when they purchased their cars, they would now be exempt from the use tax. The State disagrees, asserting that the exemption applies only to Vermont residents who register their cars in Vermont without first having registered them elsewhere. According to it, a resident who purchases, pays a sales or use tax on, and registers a car in another State must also pay the Vermont use tax upon his return, bearing the same obligation as appellants.The State's submission, if it is to be accepted, would negate any claim that appellants were treated differently than Vermont residents in similar circumstances. [Footnote 4] For several reasons, Page 472 U. S. 20 however, we do not believe that in ruling on the equal protection claim the Vermont Supreme Court construed the exemption in this manner. [Footnote 5] The exemption contained in § 8911(9) refers to "pleasure cars acquired outside the state by a resident of Vermont." That language, on its face, exempts Vermont residents who register in another State, and in Leverson, the Vermont Supreme Court appears to have proceeded on this basis. That court set out a comprehensive list of who must pay the tax, from which the Vermont resident who first registers the car in another State is conspicuously absent. 144 Vt. at 532, 481 A.2d at 1034. The opinion also several times points out that residents who pay a tax in a nonreciprocal State do not enjoy the credit upon registering their cars in Vermont. Id. at 532, 533, 481 A.2d at 1034, 1035. Had the court believed that those purchasing and registering a car in a reciprocal State are also not exempt, one would have expected it to have said so. Similarly, the court noted that someone in appellants' position"is treated in exactly the same manner as all nonexempt persons, including the resident who purchases his vehicle in a nonreciprocal state."Id. at 533, 481 A.2d at 1035. If the court had understood the statute as do appellees, it would also have noted that appellants were treated just like any resident who had previously registered a car elsewhere, not just one who purchased in a nonreciprocal State.More fundamentally, had the Vermont Supreme Court accepted the narrow construction of the exemption that the State urges, it surely would have stated that the new resident suffers no unequal treatment under the statute at all, and would have found no necessity to justify any discriminatory impact of the tax. This would have been a simple and straightforward answer to the equal protection claim, and Page 472 U. S. 21 there would have been no occasion to address the level of scrutiny to be applied to the discrimination or to identify the State's interest in imposing the differential treatment of the nonresident. Instead, the court concluded that the State need have only a rational basis for the discrimination, and proceeded to hold that there was adequate justification for not extending the exemption to nonresidents. [Footnote 6]In short, every indication is that a Vermont resident who, like appellants, bought a car in another State, paid a sales or use tax, and used the car there for a period of time before coming to Vermont would receive the credit. Appellees offer only their own say-so to the contrary. See Tr. of Oral Arg. 39. Pointing to nothing in the statute or in the opinion below to support their narrow reading, they would have us essentially add a clause that is not there. We cannot do so without stronger authority. We therefore proceed on the understanding that a Vermonter enjoys a credit for any sales taxes paid to a reciprocating State, even if he registered and used the car there before registering the car in Vermont.IIIThis Court has expressly reserved the question whether a State must credit a sales tax paid to another State against its Page 472 U. S. 22 own use tax. Southern Pacific Co. v. Gallagher, 306 U. S. 167, 306 U. S. 172 (1939); Henneford v. Silas Mason Co., 300 U. S. 577, 300 U. S. 587 (1937). The District of Columbia and all but three States with sales and use taxes do provide such a credit, although reciprocity may be required. CCH, State Tax Guide 6013 (1984). As noted above, see n 2, supra, Vermont provides a credit with regard to its general use tax. Such a requirement has been endorsed by at least one state court, Montgomery Ward & Co. v. State Board of Equalization, 272 Cal. App. 2d 728, 78 Cal. Rptr. 373 (1969), cert. denied, 396 U.S. 1040 (1970), was advocated 20 years ago in the much-cited Report of the Willis Subcommittee, H.R.Rep. No. 565, 89th Cong., 1st Sess., 1136, 1177-1178 (1965), is adopted in the Multistate Tax Compact, Art. V, § 1, and has significant support in the commentary, e.g., J. Hellerstein & W. Hellerstein, State and Local Taxation 637-638 (1978); Developments in the Law: Federal Limits on State Taxation of Interstate Business, 75 Harv.L.Rev. 953, 999-1000 (1962). Appellants urge us to hold that it is a constitutional requirement. Brief for Appellants 31-35. Once again, however, we find it unnecessary to reach this question. Whatever the general rule may be, to provide a credit only to those who were residents at the time they paid the sales tax to another State is an arbitrary distinction that violates the Equal Protection Clause.This Court has many times pointed out that, in structuring internal taxation schemes, "the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation." Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356, 410 U. S. 359 (1973). It has been reluctant to interfere with legislative policy decisions in this area. See Regan v. Taxation with Representation of Washington, 461 U. S. 540, 461 U. S. 547-548 (1983); San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 411 U. S. 40-41 (1973); Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522, 358 U. S. 526-527 (1959). An exemption such as that challenged Page 472 U. S. 23 here"will be sustained if the legislature could have reasonably concluded that the challenged classification would promote a legitimate state purpose."Exxon Corp. v. Eagerton, 462 U. S. 176, 462 U. S. 196 (1983). See generally Schweiker v. Wilson, 450 U. S. 221, 450 U. S. 234-235 (1981).We perceive no legitimate purpose, however, that is furthered by this discriminatory exemption. As we said in holding that the use tax base cannot be broader than the sales tax base,"equal treatment for in-state and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state."Halliburton Oil Well Co. v. Reily, 373 U. S. 64, 373 U. S. 70 (1963). [Footnote 7] A State may not treat those within its borders unequalled solely on the basis of their different residences or States of incorporation. WHYY v. Glassboro, 393 U. S. 117, 393 U. S. 119 (1968); Wheeling Steel Corp. v. Glander, 337 U. S. 562, 337 U. S. 571-572 (1949). In the present case, residence at the time of purchase is a wholly arbitrary basis on which to distinguish among present Vermont registrants -- at least among those who used their cars elsewhere before coming to Vermont. [Footnote 8] Having registered a car in Vermont, they are similarly situated for all relevant purposes. Each is a Vermont resident, using a car in Vermont, with an equal obligation to pay for Page 472 U. S. 24 the maintenance and improvement of Vermont's roads. The purposes of the statute would be identically served, and with an identical burden, by taxing each. The distinction between them bears no relation to the statutory purpose. See Zobel v. Williams, 457 U. S. 55, 457 U. S. 61 (1982); cf. Texaco, Inc. v. Short, 454 U. S. 516, 454 U. S. 540 (1982). As the Court said in Wheeling, appellants have not been"accorded equal treatment, and the inequality is not because of the slightest difference in [Vermont's] relation to the decisive transaction, but solely because of the[ir] different residence."337 U.S. at 337 U. S. 572.In some ways, this is not a typical sales and use tax scheme. The proceeds go to a transportation fund, rather than to general revenue. Perhaps as a result, the sales tax is narrower than most, in that it applies not to all sales within the jurisdiction, but only to those to residents. Conversely, the use tax is broader than most, in that it applies to items purchased by nonresidents and taxed by other States. As noted, the general sales and use tax provisions of Vermont, for example, have neither of these features. See n 2, supra.Applied to those such as appellants, the use tax exceeds the usual justifications for such a tax. A use tax is generally perceived as a necessary complement to the sales tax, designed to"protect a state's revenues by taking away the advantages to residents of traveling out of state to make untaxed purchases, and to protect local merchants from out-of-state competition which, because of its lower or nonexistent tax burdens, can offer lower prices."Leverson, 144 Vt. at 527, 481 A.2d at 1032, quoting Rowe-Genereux, Inc. v. Department of Taxes, 138 Vt. 130, 133-134, 411 A.2d 1345, 1347 (1980); see Henneford v. Silas Mason Co., supra, at 300 U. S. 581. This customary rationale for the use tax has no application to purchases made out-of-state by those who were not residents of the taxing State at the time of purchase. These home-state transactions cannot be seen as lost Page 472 U. S. 25 Vermont sales, and are certainly not ones lost as a result of Vermont's sales tax. Imposing a use tax on them in no way protects local business. In short, in its structure, this sales and use tax combination is exactly the opposite of the customary provisions: there is no disincentive to the Vermont resident's purchasing outside the State, and there is a penalty on those who bought out-of-state but could not have been expected to do otherwise. The first provision limits local commerce, the second does not help it.Despite Leverson's passing reference to the standard rationale for use taxes, then, the only plausible justification for imposing the tax on those in appellants' position in the first place --apart from the simple desire to raise funds -- is the principle that those using the roads should pay for them. In Leverson, the Vermont Supreme Court supported the tax by reference to "Vermont's basic policy" of making those who use the highways contribute to their maintenance and improvement. 144 Vt. at 532, 481 A.2d at 1034. [Footnote 9] Yet this does not explain the exemption for a resident who bought a car elsewhere and paid a tax to another State, which, as the dissent points out, post at 472 U. S. 32-33, is "directly contrary" to the user-pays principle. This "basic policy" arguably supports Page 472 U. S. 26 imposition of the use tax on appellants, and the denial of a credit to them; but it provides no rational reason to spare Vermont residents an equal burden. The same response applies to the Vermont court's statement that to allow an exemption for people in appellants' position, or for Vermonters who purchase in nonreciprocal States,"would run counter to the state's present policies of requiring user contributions and encouraging purchases within the state, and would result in the loss of tax revenues to the state."144 Vt. at 533, 481 A.2d at 1035. This is no less true with regard to the Vermonter who purchases a car in a reciprocal State. Granting the resident a credit for sales tax paid to the other State is similarly "counter to the state's policies of requiring user contributions and encouraging purchases within the state." Ibid.The Leverson court's primary explanation of the exemption was that it"appears to be based upon a policy of encouraging out-of-staters from reciprocal states to purchase their vehicles in Vermont and pay a sales tax to Vermont, secure in the knowledge that they will not be subject to a duplicate tax in their home states, and upon a legislative assumption that few, if any, tax dollars will be lost through this exercise in comity."Id. at 532, 481 A.2d at 1034-1035. However, the exemption cannot be justified as an indirect means of encouraging out-of-staters to purchase in Vermont and pay Vermont sales tax, for the straightforward reason that Vermont does not impose its sales tax on nonresidents. § 8903(a).Appellees take a different tack, suggesting that the exemption is designed to encourage interstate commerce by enabling Vermont residents, faced with limited automobile offerings at home, Tr. of Oral Arg. 35-36, to shop outside the State without penalty. Brief for Appellees 7. This justification may sound plausible, but it fails to support the classification at issue. Those in appellants' position pay exactly the Page 472 U. S. 27 penalty for purchasing out-of-state that Vermont spares its own residents. The credit may rationally further Vermont's legitimate interest in facilitating Vermonters' out-of-state purchases, but this interest does not extend to the facilitation of Vermonters' out-of-state use. Vermont may choose not to penalize old residents who used their cars in other States, but it cannot extend that benefit to old residents and deny it to new ones. The fact that it may be rational or beneficent to spare some the burden of double taxation does not mean that the beneficence can be distributed arbitrarily.Finally, the Vermont court pointed out that Leverson was"treated in exactly the same manner as all nonexempt persons, including the resident who purchases his vehicle in a nonreciprocal state."144 Vt. at 533, 481 A.2d at 1035. Yet the fact that all those not benefited by the challenged exemption are treated equally has no bearing on the legitimacy of that classification in the first place. A State cannot deflect an equal protection challenge by observing that, in light of the statutory classification, all those within the burdened class are similarly situated. The classification must reflect preexisting differences; it cannot create new ones that are supported by only their own bootstraps. "The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes." Rinaldi v. Yeager, 384 U. S. 305, 384 U. S. 308 (1966).In sum, we can see no relevant difference between motor vehicle registrants who purchased their cars out-of-state while they were Vermont residents and those who only came to Vermont after buying a car elsewhere. To free one group and not the other from the otherwise applicable tax burden violates the Equal Protection Clause.IVOur holding is quite narrow, and we conclude by emphasizing what we do not decide. We need not consider appellants' various arguments based on the right to travel, the Privileges and Immunities Clause, and the Commerce Clause. Page 472 U. S. 28 We again put to one side the question whether a State must, in all circumstances, credit sales or use taxes paid to another State against its own use tax. In addition, we note that this action was dismissed for failure to state a claim before an answer was filed. The "dominant theme running through all state taxation cases" is the "concern with the actuality of operation." Halliburton, 373 U.S. at 373 U. S. 69. It is conceivable that, were a full record developed, it would turn out that in practice the statute does not operate in a discriminatory fashion. Finally, in light of the fact that the action was dismissed on the pleadings, and given the possible relevance of state law, see Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 468 U. S. 277 (1984), we express no opinion as to the appropriate remedy.We hold only that, when the statute is viewed on its face, appellants have stated a claim of unconstitutional discrimination. The decision below is accordingly reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered | U.S. Supreme CourtWilliams v. Vermont, 472 U.S. 14 (1985)Williams v. VermontNo. 84-592Argued March 19, 1985Decided June 4, 1985472 U.S. 14SyllabusVermont collects a use tax when cars are registered with it, but the tax is not imposed if the car was purchased in Vermont and a sales tax has been paid. The tax is also reduced by the amount of any sales or use tax paid to another State if that State would afford a credit for taxes paid to Vermont in similar circumstances. The credit is available, however, only if the registrant was a Vermont resident at the time he paid the taxes. Appellants, who bought and registered cars outside of Vermont before becoming Vermont residents, were required to pay the full use tax in order to register their cars in Vermont. In proceedings in the Vermont Superior Court, appellants alleged that Vermont's failure to afford them credit for the out-of-state sales taxes they had paid violated, inter alia, the Equal Protection Clause of the Fourteenth Amendment because the credit was provided in the case of vehicles acquired outside the State by Vermont residents. Rejecting appellants' contention, the court dismissed the complaint. The Vermont Supreme Court affirmed by citation to another decision handed down the same day, Leverson v. Conway, 144 Vt. 523, 481 A.2d 1029, in which it rejected a similar equal protection challenge to the tax credit, concluding that the Vermont statute was rationally related to the legitimate state interest in raising revenue to maintain and improve the highways, and rationally placed the burden on those who used them.Held: When the Vermont statute is viewed on its face, appellants have stated a claim of discrimination prohibited by the Equal Protection Clause. Pp. 472 U. S. 18-28.(a) While the State asserts that the tax credit applies only to Vermont residents who register their cars in Vermont without first having registered them elsewhere, and that a resident who purchases, pays a sales or use tax on, and registers a car in another State must also pay the Vermont use tax upon his return, it does not appear that the Vermont Supreme Court, in ruling on the equal protection claim in Leverson, supra, construed the exemption in such a manner. Instead, every indication is that a Vermont resident enjoys a credit for any sales taxes paid to a reciprocating State, even if he registered and used the car there before registering it in Vermont. Pp. 472 U. S. 18-21.(b) An exemption such as that challenged here will be sustained if the legislature could have reasonably concluded that the challenged classification Page 472 U. S. 15 would promote a legitimate state purpose. No legitimate purpose is furthered by the discriminatory exemption here. Residence at the time of purchase is a wholly arbitrary basis on which to distinguish among present Vermont registrants -- at least among those who used their cars elsewhere before coming to Vermont. The distinction between them bears no relation to the statutory purpose of raising revenue for the maintenance and improvement of Vermont roads. The customary rationale for a use tax -- relating to protecting local merchants from out-of-state competition which, because of its lower or nonexistent tax burdens, can offer lower prices -- has no application to purchases made out-of-state by those who were not residents of the taxing State at the time of purchase. Nor can the distinction here be justified by a state policy of making those who use the highways contribute to their maintenance and improvement, or as encouraging interstate commerce by enabling Vermont residents, faced with limited automobile offerings at home, to shop outside the State without penalty. Pp. 472 U. S. 21-27.144 Vt. 649, 478 A.2d 993, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, and STEVENS, JJ., joined. BRENNAN, J., filed a concurring opinion, post, p. 472 U. S. 28. BLACKMUN, J., filed a dissenting opinion, in which REHNQUIST and O'CONNOR, JJ., joined, post, p. 472 U. S. 28. POWELL, J., took no part in the decision of the case. |
366 | 1959_4 | MR. JUSTICE BRENNAN delivered the opinion of the Court.A group of labor organizations, appellants here, and the carriers comprising the Southern Railway System, entered into a union shop agreement pursuant to the authority of § 2, Eleventh, of the Railway Labor Act. [Footnote 1] The agreement Page 367 U. S. 743 requires each of the appellees, employees of the carriers, as a condition of continued employment, to pay the appellant union representing his particular class of craft the dues, initiation fees and assessments uniformly Page 367 U. S. 744 required as a condition of acquiring or retaining union membership. The appellees, in behalf of themselves and of employees similarly situated, brought this action in the Superior Court of Bibb County, Georgia, alleging that the money each was thus compelled to pay to hold his job was in substantial part used to finance the campaigns of candidates for federal and state offices whom he opposed, and to promote the propagation of political and economic doctrines, concepts and ideologies with which he disagreed. The Superior Court found that the allegations were fully proved, [Footnote 2] and entered a judgment Page 367 U. S. 745 and decree enjoining the enforcement of the union shop agreement on the ground that § 2, Eleventh, violates the Federal Constitution to the extent that it permits such use by the appellants of the funds exacted from employees. [Footnote 3] The Supreme Court of Georgia affirmed, 215 Page 367 U. S. 746 Ga. 27, 108 S.E.2d 796. [Footnote 4] On appeal to this Court under 28 U.S.C. § 1257(1), we noted probable jurisdiction, 361 U.S. 807.ITHE HANSON DECISIONWe held in Railway Employees' Dept. v. Hanson, 351 U. S. 225, that enactment of the provision of § 2, Eleventh, authorizing union shop agreements between interstate railroads and unions of their employees was a valid exercise by Congress of its powers under the Commerce Clause, and did not violate the First Amendment or the Due Process Clause of the Fifth Amendment. It is argued that our disposition of the First Amendment claims in Hanson disposes of appellees' constitutional claims in this case adversely to their contentions. We disagree. As appears from its history, that case decided only that § 2, Eleventh, in authorizing collective agreements conditioning employees' Page 367 U. S. 747 continued employment on payment of union dues, initiation fees and assessments, did not, on its face, impinge upon protected rights of association. The Nebraska Supreme Court, in Hanson, upholding the employees' contention that the union shop could not constitutionally be enforced against them, stated that the union shop"improperly burdens their right to work and infringes upon their freedoms. This is particularly true as to the latter, because it is apparent that some of these labor organizations advocate political ideas, support political candidates, and advance national economic concepts which may or may not be of an employee's choice."Hanson v. Union Pac. R. Co., 160 Neb. 669, 697, 71 N.W.2d 526, 546. That statement was made in the context of the argument that compelling an individual to become a member of an organization with political aspects is an infringement of the constitutional freedom of association, whatever may be the constitutionality of compulsory financial support of group activities outside the political process. The Nebraska court's reference to the support of political ideas, candidates, and economic concepts "which may or may not be of an employee's choice" indicates that it was considering, at most, the question of compelled membership in an organization with political facets. In their brief in this Court, the appellees in Hanson argued that First Amendment rights would be infringed by the enforcement of an agreement which would enable compulsorily collected funds to be used for political purposes. But there was nothing concrete in the record to show the extent to which the unions were actually spending money for political purposes, and what these purposes were; nothing to show the extent to which union funds collected from members were being used to meet the costs of political activity and the mechanism by which this was done; and nothing to show that the employees there involved opposed the use of their Page 367 U. S. 748 money for any particular political objective. [Footnote 5] In contrast, the present record contains detailed information on all these points, and specific findings were made in the courts below as to all of them. When it is recalled that the action in Hanson was brought before the union shop agreement became effective, and that the appellees never thereafter showed that the unions were actually engaged in furthering political causes with which they disagreed and that their money would be used to support such activities, it becomes obvious that this Court passed merely on the constitutional validity of § 2, Eleventh, of the Railway Labor Act on its face, and not as applied to infringe the particularized constitutional rights of any individual. On such a record, the Court could not have done more consistently with the restraints that govern us in the adjudication of constitutional questions and warn against their premature decision. We therefore reserved decision of the constitutional questions which the appellees present in this case. We said:"It is argued that compulsory membership will be used to impair freedom of expression. But that problem is not presented by this record. . . . [I]f the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the Fifth Amendment, this Page 367 U. S. 749 judgment will not prejudice the decision in that case. For we pass narrowly on § 2, Eleventh, of the Railway Labor Act. We only hold that the requirement for financial support of the collective bargaining agency by all who receive the benefits of its work is within the power of Congress under the Commerce Clause, and does not violate either the First or the Fifth Amendments."Id., p. 351 U. S. 238. See also p. 351 U. S. 242 (concurring opinion). Thus, all that was held in Hanson was that § 2, Eleventh, was constitutional in its bare authorization of union shop contracts requiring workers to give "financial support" to unions legally authorized to act as their collective bargaining agents. We sustained this requirement -- and only this requirement -- embodied in the statutory authorization of agreements under which "all employees shall become members of the labor organization representing their craft or class." Clearly, we passed neither upon forced association in any other aspect nor upon the issue of the use of exacted money for political causes which were opposed by the employment.The record in this case is adequate squarely to present the constitutional questions reserved in Hanson. These are questions of the utmost gravity. However, the restraints against unnecessary constitutional decisions counsel against their determination unless we must conclude that Congress, in authorizing a union shop under § 2, Eleventh, also meant that the labor organization receiving an employee's money should be free, despite that employee's objection, to spend his money for political causes which he opposes. Federal statutes are to be so construed as to avoid serious doubt of their constitutionality."When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."Crowell Page 367 U. S. 750 v. Benson, 285 U. S. 22, 285 U. S. 62. Each named appellee in this action has made known to the union representing his craft of class his dissent from the use of his money for political causes which he opposes. We have therefore examined the legislative history of § 2, Eleventh, in the context of the development of unionism in the railroad industry under the regulatory scheme created by the Railway Labor Act to determine whether a construction is "fairly possible" which denies the authority to a union, over the employee's objection, to spend his money for political causes which he opposes. We conclude that such a construction is not only "fairly possible," but entirely reasonable, and we therefore find it unnecessary to decide the correctness of the constitutional determinations made by the Georgia courts.IITHE RAIL UNIONS AND UNION SECURITYThe history of union security in the railway industry is marked first, by a strong and longstanding tradition of voluntary unionism on the part of the standard rail unions; [Footnote 6] second, by the declaration in 1934 of a congressional policy of complete freedom of choice of employees to join or not to join a union; third, by the modification Page 367 U. S. 751 of the firm legislative policy against compulsion, but only as a specific response to the recognition of the expenses and burdens incurred by the unions in the administration of the complex scheme of the Railway Labor Act.When the question of union security in the rail industry was first given detailed consideration by Congress in 1934, [Footnote 7] only one of the standard unions had security provisions in any of its contracts. The Brotherhood of Railroad Trainmen maintained a number of so-called "percentage" contracts requiring that, in certain classes of employees represented by the Brotherhood, a specified percentage of employees had to belong to the union. These contracts applied only to yard conductors, yard brakemen and switchmen, and covered no more than 10,000 workers, about 1% of all rail employees. See letter from Joseph B. Eastman, Federal Coordinator of Transportation, to Chairman of the House Committee on Interstate and Foreign Commerce, June 7, 1934, H.R.Rep. No. 1944, 73d Cong., 2d Sess., pp. 14-16; testimony of James A. Farquharson, legislative representative of the Brotherhood of Railroad Trainmen, Hearings on H.R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., pp. 94-105. Page 367 U. S. 752During congressional consideration of the 1934 legislation, the rail unions attempted to persuade Congress not to preclude them from negotiating security arrangements. By amendments to the original proposal, they sought to assure that the provision which became § 2, Fifth, should prevent the carriers from conditioning employment on membership in a company union, but should exempt the standard unions from its prohibitions. The Trainmen, the only union which stood to lose existing contracts if the section was not limited to company unions, especially urged such a limitation. See statement of A. F. Whitney, president, S.Rep. No. 1065, 73d Cong., 2d Sess., pt. 2, p. 2; see also 78 Cong.Rec. 12372, 12376.The unions succeeded in having the House incorporate such a limitation in the bill it passed. See H.R.Rep. No. 1944, 73d Cong., 2d Sess. 2, 6; 78 Cong.Rec. 11710-11720. But the Senate did not acquiesce. Eastman, a firm believer in complete freedom of employees in their choice of representatives, strongly opposed the limitation. He characterized it as"vicious, because it strikes at the principle of freedom of choice which the bill is designed to protect. The prohibited practices acquire no virtue by being confined to so-called 'standard unions.' . . . Within recent years, the practice of tying up men's jobs with labor union membership has crept into the railroad industry, which theretofore was singularly clean in this respect. The practice has been largely in connection with company unions, but not entirely. If genuine freedom of choice is to be the basis of labor relations under the Railway Labor Act, as it should be, then the yellow-dog contract, and its corollary, the closed shop, and the so-called 'percentage contract,' have no place in the picture."Hearings on S. 3266, Senate Committee on Interstate Page 367 U. S. 753 Commerce, 73d Cong., 2d Sess., p. 157. [Footnote 8] Eastman's views prevailed in the Senate, and the House concurred in a final version of § 2, Fifth, providing that"[n]o carrier . . . shall require any person seeking employment to sign any contract or agreement promising to join or not to join a labor organization."See 78 Cong.Rec. 12369-12376, 12382-12388, 12389-12398, 12400-12402, 12549-12555.During World War II, the nonoperating unions made an unsuccessful attempt to obtain union security, incidental to an effort to secure a wage increase. Following the failure of negotiations and mediation, a Presidential Emergency Board was appointed. Two principal reasons were advanced by the unions. They urged that, in view of their pledge not to strike for the duration and their responsibilities to assure uninterrupted operation of the railroads, they were justified in seeking to maintain their positions by union security arrangements. They also maintained that, since they secured benefits through collective bargaining for all employees they represented, it was fair that the costs of their operations be Page 367 U. S. 754 shared by all workers. The Board recommended withdrawal of the request, concluding that the union shop was plainly forbidden by the Railway Labor Act and that, in any event, the unions had failed to show it necessity or utility. Presidential Emergency Board, appointed Feb. 20, 1943, Report of May 24, 1943; Supplemental Report, May 29, 1943. The Report said:"[T]he Board is convinced that the essential elements of the union shop, as defined in the employees' request, are prohibited by section 2 of the Railway Labor Act. The intent of Congress in this respect is made evident with unusual clarity."Supplemental Report, supra, p. 29. [Footnote 9] On the merits of the issue, the Board expressly rejected the claim that union security was necessary to protect the bargaining position of the unions:"[T]he unions are not suffering from a falling off in members. On the contrary, . . . membership has been growing, and at the present time appears to be the largest in railroad history, with less than 10 percent nonmembership among the employees here represented."Supplemental Report, p. 31."[T]he evidence presented with respect to danger from predatory rivals seemed to the Board lacking in sufficiency, especially so in the light of the evidence concerning membership growth."Ibid."[N]o evidence was presented indicating that the unions stand in jeopardy by reason of carrier opposition. A few railroads were mentioned on which some of the unions do not represent a majority of their craft or class, and do not have bargaining relationships with the carrier. But the exhibits show that these unions are the chosen representatives of the employees on the overwhelming majority of the railroads, Page 367 U. S. 755 and that recognition of the unions is general. The Board does not find therefore that a sufficient case has been made for the necessity of additional protection of union status on the railroads."Id., p. 32. The unions acceded to the Board's recommendation.The question of union security was reopened in 1950. [Footnote 10] Congress then evaluated the proposal for authorizing the union shop primarily in terms of its relationship to the financing of the unions' participation in the machinery created by the Railway Labor Act to achieve its goals. The framework for fostering voluntary adjustments between the carriers and their employees in the interest of the efficient discharge by the carriers of their important functions with minimum disruption from labor strife has no statutory parallel in other industry. That machinery, the product of a long legislative evolution, is more complex than that of any other industry. The labor relations of interstate carriers have been a subject of congressional Page 367 U. S. 756 enactments since 1888. [Footnote 11] For a time, after World War I, Congress experimented with a form of compulsory arbitration. [Footnote 12] Page 367 U. S. 757 The experiment was unsuccessful. Congress has since that time consistently adhered to a regulatory policy which places the responsibility squarely upon the carriers and the unions mutually to work out settlements of all aspects of the labor relationship. That policy was embodied in the Railway Labor Act of 1926, 44 Stat. 577, Page 367 U. S. 758 which remains the basic regulatory enactment. As the Senate Report on the bill which became that law stated:"The question was . . . presented whether the substitute [for the Act of 1920] should consist of a compulsory system with adequate means provided for its enforcement, or whether it was in the public interest to create the machinery for amicable adjustment of labor disputes agreed upon by the parties and to the success of which both parties were committed. . . . The committee is of opinion that it is in the public interest to permit a fair trial of the method of amicable adjustment agreed upon by the parties, rather than to attempt, under existing conditions, to use the entire power of the Government to deal with these labor disputes."S.Rep. No. 606, 69th Cong., 1st Sess., p. 4. The reference to the plan "agreed upon by the parties" was to"the fact that the Railway Labor Act of 1926 came on the statute books through agreement between the railroads and the railroad unions on the need for such legislation. It is accurate to say that the railroads and the railroad unions, between them, wrote the Railway Labor Act of 1926, and Congress formally enacted their agreement."Railway Employees' Dept. v. Hanson, supra, p. 351 U. S. 240 (concurring opinion). See generally Murphy, Agreement on the Railroads -- The Joint Railway Conference of 1926, 11 Lab.L.J. 823."All through the [1926] Act is the theory that the agreement is the vital thing in life." Statement of Donald R. Richberg, Hearings on H.R. 7180, House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., pp. 15-16. The Act created affirmative legal duties on the part of the carriers and their employees"to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise. . . ."§ 2, First. See Texas & N.O. R. Co. v. Brotherhood of Page 367 U. S. 759 Railway & Steamship Clerks, 281 U. S. 548. The Act also established a comprehensive administrative apparatus for the adjustment of disputes, in conferences between the parties, § 2, Second, Third and Fourth (now Sixth), and if not so settled, in submissions to boards of adjustment, § 3, or the National Mediation Board, § 4. And the legislation expanded the already existing voluntary arbitration machinery, §§ 7, 8, 9.A primary purpose of the major revisions made in 1934 was to strengthen the position of the labor organizations vis-a-vis the carriers, to the end of furthering the success of the basic congressional policy of self-adjustment of the industry's labor problems between carrier organizations and effective labor organizations. The unions claimed that the carriers interfered with the employees' freedom of choice of representatives by creating company unions, and otherwise attempting to undermine the employees' participation in the process of collective bargaining. Congress amended § 2, Third to reinforce the prohibitions against interference with the choice of representatives, and to permit the employees to select nonemployee representatives. A new § 2, Fourth was added guaranteeing employees the right to organize and bargain collectively, and Congress made it the enforceable duty of the carriers "to treat with" the representatives of the employees, § 2, Ninth. See Virginian R. Co. v. System Federation, 300 U. S. 515. It was made explicit that the representative selected by a majority of any class or craft of employees should be the exclusive bargaining representative of all the employees of that craft or class."The minority members of a craft are thus deprived by the statute of the right, which they would otherwise possess, to choose a representative of their own, and its members cannot bargain individually on behalf of themselves as to matters which are properly the subject of collective bargaining."Steele v. Louisville Page 367 U. S. 760 & N.R. Co., 323 U. S. 192, 323 U. S. 200."Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents. . . ."Id. at 323 U. S. 202. In addition to thus strengthening the unions' status in relation to both the carriers and the employees, the 1934 Act created the National Railroad Adjustment Board and provided that the 18 employee representatives were to be chosen by the labor organizations national in scope. § 3. This Board was given jurisdiction to settle what are termed minor disputes in the railroad industry, primarily grievances arising from the application of collective bargaining agreements to particular situations. See Union Pacific R. Co. v. Price, 360 U. S. 601.In sum, in prescribing collective bargaining as the method of settling railway disputes, in conferring upon the unions the status of exclusive representatives in the negotiation and administration of collective agreements, and in giving them representation on the statutory board to adjudicate grievances, Congress has given the unions a clearly defined and delineated role to play in effectuating the basic congressional policy of stabilizing labor relations in the industry."It is fair to say that every stage in the evolution of this railroad labor code was progressively infused with the purpose of securing self-adjustment between the effectively organized railroads and the equally effective railroad unions and, to that end, of establishing facilities for such self-adjustment by the railroad community of its own industrial controversies. . . . The assumption, as well as the aim, of that Act [of 1934] is a process of permanent conference and negotiation between the carriers, on the one hand, and the employees through their unions, on the other."Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 325 U. S. 752-753 (dissenting opinion).Performance of these functions entails the expenditure of considerable funds. Moreover, this Court has Page 367 U. S. 761 held that, under the statutory scheme, a union's status as exclusive bargaining representative carries with it the duty fairly and equitably to represent all employees of the craft or class, union and nonunion. Steele v. Louisville & N. R. Co., 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210. The principal argument made by the unions in 1950 was based on their role in this regulatory framework. They maintained that, because of the expense of performing their duties in the congressional scheme, fairness justified the spreading of the costs to all employees who benefited. They thus advanced as their purpose the elimination of the "free riders" -- those employees who obtained the benefits of the unions' participation in the machinery of the Act without financially supporting the unions.George M. Harrison, spokesman for the Railway Labor Executives' Association, stated the unions' case in this fashion:"Activities of labor organizations resulting in the procurement of employee benefits are costly, and the only source of funds with which to carry on these activities is the dues received from members of the organization. We believe that it is essentially unfair for nonmembers to participate in the benefits of those activities without contributing anything to the cost. This is especially true when the collective bargaining representative is one from whose existence and activities he derives most important benefits, and one which is obligated by law to extend these advantages to him.""Furthermore, collective bargaining to the railroad industry is more costly from a monetary standpoint than that carried on in any other industry. The administrative machinery is more complete and more complex. The mediation, arbitration, and Presidential Emergency Board provisions of the act, while greatly in the public interest, are very costly to the Page 367 U. S. 762 unions. The handling of agreement disputes through the National Railroad Adjustment Board also requires expense which is not known to unions in outside industry."Hearings on H.R. 7789, House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., p. 10.This argument was decisive with Congress. The House Committee Report traced the history of previous legislation in the industry and pointed out the duty of the union acting as exclusive bargaining representative to represent equally all members of the class."Under the act, the collective bargaining representative is required to represent the entire membership of the craft or class, including nonunion members, fairly, equitably, and in good faith. Benefits resulting from collective bargaining may not be withheld from employees because they are not members of the union."H.R.Rep. No. 2811, 81st Cong., 2d Sess., p. 4. Observing that about 75% or 80% of all railroad employees were believed to belong to a union, the report continued:"Nonunion members, nevertheless, share in the benefits derived from collective agreements negotiated by the railway labor unions, but bear no share of the cost of obtaining such benefits."Ibid. [Footnote 13] Page 367 U. S. 763 These considerations overbore the arguments in favor of the earlier policy of complete individual freedom of choice. As we said in Railway Employees' Dept. v. Hanson, supra, at 351 U. S. 235,"[t]o require, rather than to induce, the beneficiaries of trade unionism to contribute to its costs may not be the wisest course. But Congress might well believe that it would help insure the right to work in and along the arteries of interstate commerce. No more has been attempted here. . . . The financial support required relates . . . to the work of the union in the realm of collective bargaining. [Footnote 14]"The conclusion to which this history clearly Page 367 U. S. 764 points is that § 2, Eleventh, contemplated compulsory unionism to force employees to share the costs of negotiating and administering collective agreements, and the costs of the adjustment and settlement of disputes. [Footnote 15] One looks in vain for any suggestion that Congress also meant in § 2, Eleventh, to provide the unions with a means for forcing employees, over their objection, to support political causes which they oppose. Page 367 U. S. 765IIITHE SAFEGUARDING OF RIGHTS OF DISSENTTo the contrary, Congress incorporated safeguards in the statute to protect dissenters' interests. Congress became concerned during the hearings and debates that the union shop might be used to abridge freedom of speech and beliefs. The original proposal for authorization of the union shop was qualified in only one respect. It provided"[t]hat 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. . . ."This was primarily designed to prevent discharge of employees for nonmembership where the union did not admit the employee to membership on racial grounds. See House Hearings, p. 68; Senate Hearings, pp. 22-25. But it was strenuously protested that the proposal provided no protection for an employee who disagreed with union policies or leadership. It was argued, for example, that"the right of free speech is at stake. . . . A man could feel that he was no longer able freely to express himself, because he could be dismissed on account of criticism of the union. . . ."House Hearings, p. 115; see also Senate Hearings, pp. 167-169, 320. Objections of this kind led the rail unions to propose an addition to the proviso to § 2, Eleventh, to prevent loss of job for lack of union membership"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, fees, and assessments uniformly required as a condition of acquiring or retaining membership."House Hearings, p. 247. Mr. Harrison presented this text, and stated,"It is submitted that this bill with the amendment as suggested in this statement Page 367 U. S. 766 remedies the alleged abuses of compulsory union membership as claimed by the opposing witnesses, yet makes possible the elimination of the 'free rider' and the sharing of the burden of maintenance by all of the beneficiaries of union activity."House Hearings, p. 253. Mr. Harrison also sought to reassure Committee members as to the possible implications of other language of the proposed bill; he explained that "fees" meant "initiation fees," and "assessments" was intended primarily to cover the situation of a union which had only nominal dues, so that its members paid"an assessment to finance the activities of the general negotiating committee; . . . it will vary month by month, based on the expenses and work of that committee."P. 257. Or, he explained, an assessment might cover convention expenses."So we had to use the word 'assessment' in addition to dues and fees because some of the unions collect a nominal amount of dues and an assessment month after month to finance part of the activities, although, in total, it perhaps is no different than the dues paid in the first instance which comprehended all of those expenses."P. 258. In reporting the bill, the Senate Committee expressly noted the protective proviso, S.Rep.No. 2262, 81st Cong., 2d Sess., pp. 3-4, and affixed the Senate additional limitations. The words "not including fines and penalties" were added to make it clear that termination of union membership for their nonpayment would not be grounds for discharge. It was also made explicit that "fees" meant "initiation fees." See 96 Cong.Rec. 16267-16268.A congressional concern over possible impingements on the interests of individual dissenters from union policies is therefore discernible. It is true that opponents of the union shop urged that Congress should not allow it without explicitly regulating the amount of dues which might be exacted or prescribing the uses for Page 367 U. S. 767 which the dues might be expended. [Footnote 16] We may assume that Congress was also fully conversant with the long history of intensive involvement of the railroad unions in political activities. But it does not follow that § 2, Eleventh, places no restriction on the use of an employee's money, over his objection, to support political causes he opposes merely because Congress did not enact a comprehensive regulatory scheme governing expenditures. For it is abundantly clear that Congress did not completely abandon the policy of full freedom of choice embodied in the 1934 Act, but rather made inroads on it for the limited purpose of eliminating the problems created by the "free rider." That policy survives in § 2, Eleventh, in the safeguards intended to protect freedom of dissent. Congress was aware of the conflicting interests involved in the question of the union shop and sought to achieve their accommodation. As was said by the Presidential Emergency Board which recommended the making of the union shop agreement involved in this case:"It is not as though Congress had believed it was merely removing some abstract legal barrier and not passing on the merits. It was made fully aware that it was deciding these critical issues of individual right versus collective interests which have been stressed in this proceeding.""Indeed, Congress gave very concrete evidence that it carefully considered the claims of the individual to be free of arbitrary or unreasonable restrictions resulting from compulsory unionism. It did not give a blanket approval to union shop agreements. Instead, it enacted a precise and carefully Page 367 U. S. 768 drawn limitation on the kind of union shop agreements which might be made. The obvious purpose of this careful prescription was to strike a balance between the interests pressed by the unions and the considerations which the Carriers have urged. By providing that a worker should not be discharged if he was denied or if he lost his union membership for any reason other than nonpayment of dues, initiation fees or assessments, Congress definitely indicated that it had weighed carefully and given effect to the policy of the arguments against the union shop."Report of Presidential Emergency Board No. 98, appointed pursuant to Exec. Order No. 10306, Nov. 15, 1951, p. 6.We respect this congressional purpose when we construe § 2, Eleventh, as not vesting the unions with unlimited power to spend exacted money. We are not called upon to delineate the precise limits of that power in this case. We have before us only the question whether the power is restricted to the extent of denying the unions the rights, over the employee's objection, to use his money to support political causes which he opposes. Its use to support candidates for public office, and advance political programs, is not a use which helps defray the expenses of the negotiation or administration of collective agreements, or the expenses entailed in the adjustment of grievances and disputes. In other words, it is a use which falls clearly outside the reasons advanced by the unions and accepted by Congress why authority to make union shop agreements was justified. On the other hand, it is equally clear that it is a use to support activities within the area of dissenters' interests which Congress enacted the proviso to protect. We give § 2, Eleventh, the construction which achieves both congressional purposes when we hold, as we do, that § 2, Eleventh, is to be construed to deny the unions, over an Page 367 U. S. 769 employee's objection, the power to use his exacted funds to support political causes which he opposes. [Footnote 17]We express no view as to other union expenditures objected to by an employee and not made to meet the costs of negotiation and administration of collective agreements, or the adjustment and settlement of grievances and disputes. We do not understand, in view of the findings of the Georgia courts and the question decided by the Georgia Supreme Court, that there is before us the matter of expenditures for activities in the area between the costs which led directly to the complaint as to "free riders" and the expenditures to support Page 367 U. S. 770 union political activities. [Footnote 18] We are satisfied, however, that § 2, Eleventh, is to be interpreted to deny the unions the power claimed in this case. The appellant unions, in insisting that § 2, Eleventh, contemplates their use of exacted funds to support political causes objected to by the employee, would have us hold that Congress sanctioned an expansion of historical practices in the political area by the rail unions. This we decline to do. Both by tradition and, from 1934 to 1951, by force of law, the rail unions did not rely upon the compulsion of union security agreements to exact money to support the political activities in which they engage. Our construction therefore involves no curtailment of the traditional political activities of the railroad unions. It means only that those unions must not support those activities, against the expressed wishes of a dissenting employee, with his exacted money. [Footnote 19] Page 367 U. S. 771IVTHE APPROPRIATE REMEDYUnder our view of the statute, however, the decision of the court below was erroneous, and cannot stand. The appellees who have participated in this action have, in the course of it, made known to their respective unions their objection to the use of their money for the support of political causes. In that circumstance, the respective unions were without power to use payments thereafter tendered by them for such political causes. However, the union shop agreement itself is not unlawful. Railway Employees' Dept. v. Hanson, supra. The appellees therefore remain obliged, as a condition of continued employment, to make the payments to their respective unions called for by the agreement. Their right of action stems not from constitutional limitations on Congress' power to authorize the union shop, but from § 2, Eleventh, itself. In other words, appellees' grievance stems from the spending of their funds for purposes not authorized by the Act in the face of their objection, not from the enforcement of the union shop agreement by the mere collection of funds. If their money were used for purposes contemplated by § 2, Eleventh, the appellees would have no grievance at all. We think that an injunction restraining enforcement of the union shop agreement is therefore plainly not a remedy appropriate to the violation of the Act's restriction on expenditures. Restraining the collection of all funds from the appellees sweeps too broadly, since their objection is only to the uses to which some of their money is put. Moreover, restraining collection of the funds as the Georgia courts have done might well interfere with the appellant unions' performance of those functions and duties which the Railway Labor Act places upon them to attain its goal of stability in the industry. Even though the lower court decree is subject to modification Page 367 U. S. 772 upon proof by the appellants of cessation of improper expenditures, in the interim the prohibition is absolute against the collection of all funds from anyone who can show that he is opposed to the expenditure of any of his money for political purposes which he disapproves. The complete shutoff of this source of income defeats the congressional plan to have all employees benefited share costs "in the realm of collective bargaining," Hanson, at p. 351 U. S. 235, and threatens the basic congressional policy of the Railway Labor Act for self-adjustments between effective carrier organizations and effective labor organizations. [Footnote 20]Since the case must therefore be remanded to the court below for consideration of a proper remedy, we think that it is appropriate to suggest the limits within which remedial discretion may be exercised consistently with the Railway Labor Act and other relevant public policies. As indicated, an injunction against enforcement of the union shop itself through the collection of funds is unwarranted. We also think that a blanket injunction against all expenditures of funds for the disputed purposes, even one conditioned on cessation of improper expenditures, would not be a proper exercise of equitable discretion. Nor would it be proper to issue an interim or temporary blanket injunction of this character pending a final adjudication. The Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. §§ 101-115, expresses a basic policy against the injunction of activities of labor unions. We have held that the Act does not deprive the federal courts of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act. Virginian R. Co. v. System Federation, 300 U. S. 515; Graham v. Brotherhood of Locomotive Page 367 U. S. 773 Firemen & Enginemen, 338 U. S. 232. However, the policy of the Act suggests that the courts should hesitate to fix upon the injunctive remedy for breaches of duty owing under the labor laws unless that remedy alone can effectively guard the plaintiff's right. In Graham, this Court found an injunction necessary to prevent the breach of the duty of fair representation, in order that Congress might not seem to have held out to the petitioners there "an illusory right for which it was denying them a remedy." 338 U.S. at p. 338 U. S. 240. No such necessity for a blanket injunctive remedy because of the absence of reasonable alternatives appears here. Moreover, the fact that these expenditures are made for political activities is an additional reason for reluctance to impose such an injunctive remedy. Whatever may be the powers of Congress or the States to forbid unions altogether to make various types of political expenditures, as to which the express to opinion here, [Footnote 21] many of the expenditures involved in the present case are made for the purpose of disseminating information as to candidates and programs and publicizing the positions of the unions on them. As to such expenditures, an injunction would work a restraint on the expression of political ideas which might be offensive to the First Amendment. For the majority also has an interest in stating its views without being silenced by the dissenters. To attain the appropriate reconciliation between majority and dissenting interests in the area of political expression, we think the courts, in administering the Act, should select remedies which protect both interests to the maximum extent possible without undue impingement of one on the other. Page 367 U. S. 774Among possible remedies which would appear appropriate to the injury complained of, two may be enforced with a minimum of administrative difficulty [Footnote 22] and with little danger of encroachment on the legitimate activities or necessary functions of the unions. Any remedies, however, would properly be granted only to employees who have made known to the union officials that they do not desire their funds to be used for political causes to which they object. The safeguards of § 2, Eleventh, were added for the protection of dissenters' interest, but dissent is not to be presumed -- it must affirmatively be made known to the union by the dissenting employee. The union receiving money exacted from an employee under a union shop agreement should not, in fairness, be subjected to sanctions in favor of an employee who makes no complaint of the use of his money for such activities. From these considerations, it follows that the present action is not a true class action, for there is no attempt to prove the existence of a class of workers who had specifically objected to the exaction of dues for political purposes. See Hansberry v. Lee, 311 U. S. 32, 311 U. S. 44. Thus, we think that only those who have identified themselves as opposed to political uses of their funds are entitled to relief in this action.One remedy would be an injunction against expenditure for political causes opposed by each complaining employee of a sum, from those moneys to be spent by the Page 367 U. S. 775 union for political purposes, which is so much of the moneys exacted from him as is the proportion of the union's total expenditures made for such political activities to the union's total budget. The union should not be in a position to make up such sum from money paid by a nondissenter, for this would shift a disproportionate share of the costs of collective bargaining to the dissenter and have the same effect of applying his money to support such political activities. A second remedy would be restitution to each individual employee of that portion of his money which the union expended, despite his notification, for the political causes to which he had advised the union he was opposed. There should be no necessity, however, for the employee to trace his money up to and including its expenditure; if the money goes into general funds and no separate accounts of receipts and expenditures of the funds of individual employees are maintained, the portion of his money the employee would be entitled to recover would be in the same proportion that the expenditures for political purposes which he had advised the union he disapproved bore to the total union budget.The judgment is reversed and the case is remanded to the court below for proceedings not inconsistent with this opinion.Reversed | U.S. Supreme CourtMachinists v. Street, 367 U.S. 740 (1961)International Association of Machinists v. StreetNo. 4Argued April 21, 1960Set for reargument June 20, 1960Reargued January 17-18, 1961Decided June 19, 1961367 U.S. 740SyllabusA group of railroad employees sued in a Georgia State Court to enjoin enforcement of a union shop agreement entered into between a group of railroads and labor unions of their employees under § 2, Eleventh, of the Railway Labor Act, which required all employees to join the union and to pay initiation fees, assessments and dues in order to keep their jobs. The complaint alleged that a substantial part of the money each of these employes was thus compelled to pay was used over his protest to finance the campaigns of political candidates whom he opposed, and to promote the propagation of political and economic doctrines, concepts, and ideologies with which he disagreed. The trial court found that the allegations were fully proved, and that, in these circumstances, the union shop agreement violated the complaining employees' rights under the First Amendment. It enjoined enforcement of the union shop agreement and awarded some of the employees judgments for the money they had been required to pay. The Supreme Court of Georgia affirmed.Held: The judgment is reversed, and the case is remanded for further proceedings. Pp. 367 U. S. 742-775.1. In Railway Employees' Dept. v. Hanson, 351 U. S. 225, this Court held that enactment of the provision of § 2, Eleventh, which authorizes union shop agreements between interstate railroads and unions of their employees was a valid exercise by Congress of its powers under the Commerce Clause and did not, on its face, violate the First Amendment or the Due Process Clause of the Fifth Amendment, but it reserved decision on the constitutional questions presented in this case by the actual application of that section and the union shop agreements entered into thereunder. Pp. 367 U. S. 746-749.2. Though the record in this case adequately presents those constitutional questions, it is not necessary for this Court to decide the correctness of the constitutional determinations made by the Georgia Courts, because § 2, Eleventh, denies authority to a union, Page 367 U. S. 741 over the employee's objection, to spend his money for political causes which he opposes. Pp. 367 U. S. 749-770.(a) A review of the legislative history of the Railway Labor Act leads to the conclusion that the purpose of § 2, Eleventh, is to force employees to share the costs of negotiating and administering collective agreements and adjusting and settling disputes. Pp. 367 U.S. 750-764.(b) Section 2, Eleventh, denies the unions the power, over an employee's objection, to use his exacted funds to support political causes which he opposes. Pp. 367 U. S. 765-770.3. The judgment is reversed, and the case is remanded for further proceedings, including the fashioning of a more appropriate remedy. Pp. 367 U. S. 771-775.(a) The union shop agreement itself is not unlawful, and the employees here involved remain obligated, as a condition of continued employment, to make the payments to their respective unions called for by the agreement. P. 367 U. S. 771.(b) The injunction restraining enforcement of the union shop agreement is not a remedy appropriate to the violation of the Act's restrictions on expenditures. Pp. 367 U. S. 771-772.(c) A blanket injunction against all expenditures of funds for the disputed purposes, even one conditioned on cessation of improper expenditures, would not be a proper exercise of equitable discretion. Pp. 367 U. S. 772-773.(d) Any remedy should be granted only to employees who have made known to the union officials that they do not desire their funds to be used for political causes to which they object. P. 367 U. S. 774.(e) The present action is not a true class action, since there was no attempt to prove the existence of a class of workers who had specifically objected to the exaction of dues for political purposes. Therefore, only those who have identified themselves as opposed to political uses of their funds are entitled to relief in this action. P. 367 U. S. 774.(f) One possible remedy would be an injunction against expenditure for political causes opposed by each complaining employee of a sum, from those moneys to be spent by the union for political purposes, which is so much of the moneys exacted from him as is the proportion of the union's total expenditures made for such political activities to the union's total budget. Pp. 367 U. S. 774-775. Page 367 U. S. 742(g) Another possible remedy would be restitution to each individual employee of that portion of his money which the union expended, despite his notification, for the political causes to which he advised the union he was opposed. P. 367 U. S. 775.215 Ga. 27, 108 S.E.2d 796, judgment reversed and case remanded. |
367 | 1984_83-1065 | JUSTICE POWELL delivered the opinion of the Court.*These cases present the question whether three Tribes of the Oneida Indians may bring a suit for damages for the occupation and use of tribal land allegedly conveyed unlawfully in 1795.IThe Oneida Indian Nation of New York, the Oneida Indian Nation of Wisconsin, and the Oneida of the Thames Band Council (the Oneidas) instituted this suit in 1970 against the Counties of Oneida and Madison, New York. The Oneidas alleged that their ancestors conveyed 100,000 acres to the State of New York under a 1795 agreement that violated the Trade and Intercourse Act of 1793 (Nonintercourse Act), 1 Stat. 329, and thus that the transaction was void. The Oneidas' complaint sought damages representing the fair rental value of that part of the land presently owned and occupied by the Counties of Oneida and Madison, for the period January 1, 1968, through December 31, 1969.The United States District Court for the Northern District of New York initially dismissed the action on the ground that the complaint failed to state a claim arising under the laws of the United States. The United States Court of Appeals for the Second Circuit affirmed. Oneida Indian Nation v. County of Oneida, 464 F.2d 916 (1972). We then granted certiorari and reversed. Oneida Indian Nation v. County of Oneida, 414 U. S. 661 (1974) (Oneida I). We held unanimously that, at least for jurisdictional purposes, the Oneidas stated a claim for possession under federal law. Id. at 414 U. S. 675. The case was remanded for trial. Page 470 U. S. 230On remand, the District Court trifurcated trial of the issues. In the first phase, the court found the counties liable to the Oneidas for wrongful possession of their lands. 434 F. Supp. 527 (1977). In the second phase, it awarded the Oneidas damages in the amount of $16,694, plus interest, representing the fair rental value of the land in question for the 2-year period specified in the complaint. Finally, the District Court held that the State of New York, a third-party defendant brought into the case by the counties, must indemnify the counties for the damages owed to the Oneidas. The Court of Appeals affirmed the trial court's rulings with respect to liability and indemnification. 719 F.2d 525 (1983). It remanded, however, for further proceedings on the amount of damages. Id. at 542. The counties and the State petitioned for review of these rulings. Recognizing the importance of the Court of Appeals' decision not only for the Oneidas, but potentially for many eastern Indian land claims, we granted certiorari, 465 U.S. 1099 (1984), to determine whether an Indian tribe may have a live cause of action for a violation of its possessory rights that occurred 175 years ago. We hold that the Court of Appeals correctly so ruled.IIThe respondents in these cases are the direct descendants of members of the Oneida Indian Nation, one of the six nations of the Iroquois, the most powerful Indian Tribe in the Northeast at the time of the American Revolution. See B. Graymont, The Iroquois in the American Revolution (1972) (hereinafter Graymont). From time immemorial to shortly after the Revolution, the Oneidas inhabited what is now central New York State. Their aboriginal land was approximately six million acres, extending from the Pennsylvania border to the St. Lawrence River, from the shores of Lake Ontario to the western foothills of the Adirondack Mountains. See 434 F. Supp. at 533. Page 470 U. S. 231Although most of the Iroquois sided with the British, the Oneidas actively supported the colonists in the Revolution. Ibid.; see also Graymont, supra. This assistance prevented the Iroquois from asserting a united effort against the colonists, and thus the Oneidas' support was of considerable aid. After the War, the United States recognized the importance of the Oneidas' role, and in the Treaty of Fort Stanwix, 7 Stat. 15 (Oct. 22, 1784), the National Government promised that the Oneidas would be secure "in the possession of the lands on which they are settled." Within a short period of time, the United States twice reaffirmed this promise, in the Treaties of Fort Harmar, 7 Stat. 33 (Jan. 9, 1789), and of Canandaigua, 7 Stat. 44 (Nov. 11, 1794). [Footnote 1]During this period, the State of New York came under increasingly heavy pressure to open the Oneidas' land for settlement. Consequently, in 1788, the State entered into a "treaty" with the Indians in which it purchased the vast majority of the Oneidas' land. The Oneidas retained a reservation of about 300,000 acres, an area that, the parties stipulated below, included the land involved in this suit.In 1790, at the urging of President Washington and Secretary of War Knox, Congress passed the first Indian Trade and Intercourse Act, ch. 33, 1 Stat. 137. See 4 American State Papers, Indian Affairs, Vol. 1, p. 53 (1832); F. Prucha, American Indian Policy in the Formative Years 43-44 (1962). The Act prohibited the conveyance of Indian land except Page 470 U. S. 232 where such conveyances were entered pursuant to the treaty power of the United States. [Footnote 2] In 1793, Congress passed a stronger, more detailed version of the Act, providing that"no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution . . . [and] in the presence, and with the approbation of the commissioner or commissioners of the United States"appointed to supervise such transactions. 1 Stat. 330, § 8. Unlike the 1790 version, the new statute included criminal penalties for violation of its terms. Ibid.Despite Congress' clear policy that no person or entity should purchase Indian land without the acquiescence of the Federal Government, in 1795 the State of New York began negotiations to buy the remainder of the Oneidas' land. When this fact came to the attention of Secretary of War Pickering, he warned Governor Clinton, and later Governor Jay, that New York was required by the Nonintercourse Act to request the appointment of federal commissioners to supervise any land transaction with the Oneidas. See 434 F. Supp. at 534-535. The State ignored these warnings, and, in the summer of 1795, entered into an agreement with the Oneidas whereby they conveyed virtually all of their remaining land to the State for annual cash payments. Ibid. It is this transaction that is the basis of the Oneidas' complaint in this case.The District Court found that the 1795 conveyance did not comply with the requirements of the Nonintercourse Page 470 U. S. 233 Act. Id. at 538-541. In particular, the court stated that"[t]he only finding permitted by the record . . . is that no United States Commissioner or other official of the federal government was present at the . . . transaction."Id. at 535. The petitioners did not dispute this finding on appeal. Rather, they argued that the Oneidas did not have a federal common law cause of action for this violation. Even if such an action once existed, they contended that the Nonintercourse Act preempted it, and that the Oneidas could not maintain a private cause of action for violations of the Act. Additionally, they maintained that any such cause of action was time-barred or nonjusticiable, that any cause of action under the 1793 Act had abated, and that the United States had ratified the conveyance. The Court of Appeals, with one judge dissenting, rejected these arguments. Petitioners renew these claims here; we also reject them, and affirm the court's finding of liability.IIIAt the outset, we are faced with petitioner counties' contention that the Oneidas have no right of action for the violation of the 1793 Act. Both the District Court and the Court of Appeals rejected this claim, finding that the Oneidas had the right to sue on two theories: first, a common law right of action for unlawful possession; and second, an implied statutory cause of action under the Nonintercourse Act of 1793. We need not reach the latter question, as we think the Indians' common law right to sue is firmly established.AFederal Common LawBy the time of the Revolutionary War, several well-defined principles had been established governing the nature of a tribe's interest in its property and how those interests could be conveyed. It was accepted that Indian nations held Page 470 U. S. 234 "aboriginal title" to lands they had inhabited from time immemorial. See Cohen, Original Indian Title, 32 Minn.L.Rev. 28 (1947). The "doctrine of discovery" provided, however, that discovering nations held fee title to these lands, subject to the Indians' right of occupancy and use. As a consequence, no one could purchase Indian land or otherwise terminate aboriginal title without the consent of the sovereign. [Footnote 3] Oneida I, 414 U.S. at 414 U. S. 667. See Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me.L.Rev. 17, 19-49 (1979).With the adoption of the Constitution, Indian relations became the exclusive province of federal law. Oneida I, supra, at 414 U. S. 670 (citing Worcester v. Georgia, 6 Pet. 515, 31 U. S. 561 (1832)). [Footnote 4] From the first Indian claims presented, this Court Page 470 U. S. 235 recognized the aboriginal rights of the Indians to their lands. The Court spoke of the "unquestioned right" of the Indians to the exclusive possession of their lands, Cherokee Nation v. Georgia, 5 Pet. 1, 30 U. S. 17 (1831), and stated that the Indians' right of occupancy is "as sacred as the fee simple of the whites." Mitchel v. United States, 9 Pet. 711, 34 U. S. 746 (1835). This principle has been reaffirmed consistently. See also Fletcher v. Peck, 6 Cranch 87, 10 U. S. 142-143 (1810); Johnson v. McIntosh, 8 Wheat. 543 (1823); Clark v. Smith, 13 Pet.195, 38 U. S. 201 (1839); Lattimer v. Poteet, 14 Pet. 4 (1840); Chouteau v. Molony, 16 How. 203 (1854); Holden v. Joy, 17 Wall. 211 (1872). Thus, as we concluded in Oneida I, "the possessory right claimed [by the Oneidas] is a federal right to the lands at issue in this case." 414 U.S. at 414 U. S. 671 (emphasis in original).Numerous decisions of this Court prior to Oneida I recognized at least implicitly that Indians have a federal common law right to sue to enforce their aboriginal land rights. [Footnote 5] In Johnson v. McIntosh, supra, the Court declared invalid two private purchases of Indian land that occurred in 1773 and 1775 without the Crown's consent. Subsequently, in Marsh v. Brooks, 8 How. 223, 49 U. S. 232 (1850), it was held:"That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question. This is the result of the decision in Johnson v. McIntosh."More recently, the Court held that Indians have a common law right of action for an accounting of "all rents, issues and Page 470 U. S. 236 profits" against trespassers on their land. United States v. Santa Fe Pacific R. Co., 314 U. S. 339 (1941). [Footnote 6] Finally, the Court's opinion in Oneida I implicitly assumed that the Oneidas could bring a common law action to vindicate their aboriginal rights. Citing United States v. Santa Fe Pacific R. Co., supra, at 314 U. S. 347, we noted that the Indians' right of occupancy need not be based on treaty, statute, or other formal Government action. 414 U.S. at 414 U. S. 668-669. We stated that,"absent federal statutory guidance, the governing rule of decision would be fashioned by the federal court in the mode of the common law."Id. at 414 U. S. 674 (citing United States v. Forness, 125 F.2d 928 (CA2), cert. denied sub nom. City of Salamanca v. United States, 316 U.S. 694 (1942)).In keeping with these well-established principles, we hold that the Oneidas can maintain this action for violation of their possessory rights based on federal common law.BPreemptionPetitioners argue that the Nonintercourse Acts preempted whatever right of action the Oneidas may have had at common law, relying on our decisions in Milwaukee v. Illinois, 451 U. S. 304 (1981) (Milwaukee II), and Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1 (1981). We find this view to be unpersuasive. In determining whether a federal statute preempts common law causes of action, the relevant inquiry is whether Page 470 U. S. 237 the statute "[speaks] directly to [the] question" otherwise answered by federal common law. Milwaukee II, supra, at 451 U. S. 315 (emphasis added). As we stated in Milwaukee II, federal common law is used as a "necessary expedient" when Congress has not "spoken to a particular issue." 451 U.S. at 451 U. S. 313-314 (emphasis added). The Nonintercourse Act of 1793 does not speak directly to the question of remedies for unlawful conveyances of Indian land. A comparison of the 1793 Act and the statute at issue in Milwaukee II is instructive.Milwaukee II raised the question whether a common law action for the abatement of a nuisance caused by the pollution of interstate waterways survived the passage of the 1972 amendments to the Federal Water Pollution Control Act, Pub.L. 92-500, 86 Stat. 816 (FWPCA). [Footnote 7] FWPCA established an elaborate system for dealing with the problem of interstate water pollution, providing for enforcement of its terms by agency action and citizens suits. See Milwaukee II, supra, at 451 U. S. 325-327. It also made available civil penalties for violations of the Act. 33 U.S.C. §§ 1319(d), 1365. The legislative history indicated that Congress intended FWPCA to provide a comprehensive solution to the problem of interstate water pollution, as we noted in Milwaukee II, supra, at 451 U. S. 317-319.In contrast, the Nonintercourse Act of 1793 did not establish a comprehensive remedial plan for dealing with violations of Indian property rights. There is no indication in the legislative history that Congress intended to preempt common law remedies. [Footnote 8] Only two sections of the Act, §§ 5 and 8, Page 470 U. S. 238 involve Indian lands at all. [Footnote 9] The relevant clause of § 8 provides simply that"no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution. . . ."1 Stat. 330. It contains no remedial provision. [Footnote 10] Section 5 subjects individuals who settle on Indian lands to a fine and imprisonment, and gives the President discretionary authority to remove illegal settlers from the Indians' land. [Footnote 11] Page 470 U. S. 239 Thus, the Nonintercourse Act does not address directly the problem of restoring unlawfully conveyed land to the Indians, in contrast to the specific remedial provisions contained in FWPCA. See Milwaukee II, 451 U.S. at 451 U. S. 313-315.Significantly, Congress' action subsequent to the enactment of the 1793 statute and later versions of the Nonintercourse Act demonstrate that the Acts did not preempt common law remedies. In 1822, Congress amended the 1802 version of the Act to provide that,"in all trials about the right of property in which Indians shall be party on one side and white persons on the other, the burden of proof shall rest upon the white person in every case in which the Indian shall make out a presumption of title in himself from the fact of previous possession and ownership."§ 4, 3 Stat. 683; see 25 U.S.C. § 194. Thus, Congress apparently contemplated suits by Indians asserting their property rights.Decisions of this Court also contradict petitioners' argument for preemption. Most recently, in Wilson v. Omaha Indian Tribe, 442 U. S. 653 (1979), the Omaha Indian Tribe sued to quiet title on land that had surfaced over the years as the Missouri River changed its course. The Omahas based their claim for possession on aboriginal title. The Court construed the 1822 amendment to apply to suits brought by Indian tribes as well as individual Indians. Citing the very sections of the Act that petitioners contend preempt a common law action by the Indians, the Court interpreted the amendment to be part of the overall "design" of the Nonintercourse Acts "to protect the rights of Indians to their properties." Id. at 442 U. S. 664. See also Fellows v. Blacksmith, 19 How. 366 (1857). [Footnote 12] Page 470 U. S. 240We recognized in Oneida I that the Nonintercourse Acts simply"put in statutory form what was or came to be the accepted rule -- that the extinguishment of Indian title required the consent of the United States."414 U.S. at 414 U. S. 678. Nothing in the statutory formulation of this rule suggests that the Indians' right to pursue common law remedies was thereby preempted. Accordingly, we hold that the Oneidas' right of action under federal common law was not preempted by the passage of the Nonintercourse Acts.IVHaving determined that the Oneidas have a cause of action under federal common law, we address the question whether there are defenses available to the counties. We conclude that none has merit.AStatute of LimitationsThere is no federal statute of limitations governing federal common law actions by Indians to enforce property rights. In the absence of a controlling federal limitations period, the general rule is that a state limitations period for an analogous cause of action is borrowed and applied to the federal claim, provided that the application of the state statute would not be inconsistent with underlying federal policies.) [Footnote 13] See Page 470 U. S. 241 Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 421 U. S. 465 (1975). See also Occidental Life Ins. Co. v. EEOC, 432 U. S. 355, 432 U. S. 367 (1977). We think the borrowing of a state limitations period in these cases would be inconsistent with federal policy. Indeed, on a number of occasions, Congress has made this clear with respect to Indian land claims.In adopting the statute that gave jurisdiction over civil actions involving Indians to the New York courts, Congress included this proviso:"[N]othing herein contained shall be construed as conferring jurisdiction on the courts of the State of New York or making applicable the laws of the State of New York in civil actions involving Indian lands or claims with respect thereto which relate to transactions or events transpiring prior to September 13, 1952."25 U.S.C. § 233. This proviso was added specifically to ensure that the New York statute of limitations would not apply to pre-1952 land claims. [Footnote 14] In Oneida I, we relied on the legislative history of 25 U.S.C. § 233 in concluding that Indian land claims were exclusively a matter of federal law. 414 U.S. at 414 U. S. 680-682. This history also reflects congressional policy against the application of state statutes of limitations in the context of Indian land claims.Congress recently reaffirmed this policy in addressing the question of the appropriate statute of limitations for certain claims brought by the United States on behalf of Indians. Originally enacted in 1966, this statute provided a special limitations period of 6 years and 90 days for contract and tort suits for damages brought by the United States on Page 470 U. S. 242 behalf of Indians. 28 U.S.C. §§ 2415(a), (b). The statute stipulated that claims that accrued prior to its date of enactment, July 18, 1966, were deemed to have accrued on that date. § 2415(g). Section 2415(c) excluded from the limitations period all actions "to establish the title to, or right of possession of, real or personal property."In 1972 and again in 1977, 1980, and 1982, as the statute of limitations was about to expire for pre-1966 claims, Congress extended the time within which the United States could bring suits on behalf of the Indians. The legislative history of the 1972, 1977, and 1980 amendments demonstrates that Congress did not intend § 2415 to apply to suits brought by the Indians themselves, and that it assumed that the Indians' right to sue was not otherwise subject to any statute of limitations. Both proponents and opponents of the amendments shared these views. See 123 Cong.Rec. 22167-22168 (1977) (remarks of Rep. Dicks, arguing that extension is unnecessary because the Indians can bring suit even if the statute of limitations expires for the United States); id. at 22166 and 22499 (remarks of Rep. Cohen, arguing that the basic problem with the bill is its failure to limit suits brought by Indians); 126 Cong.Rec. 3289 (1980) (remarks of Sen. Melcher, reiterating with respect to the 1980 extension Rep. Dicks' argument against the 1977 extension); id. at 3290 (remarks of Sen. Cohen, same); Statute of Limitations Extension: Hearing before the Senate Select Committee on Indian Affairs, 96th Cong., 1st Sess., 312-314 (1979); Statute of Limitations Extension for Indian Claims: Hearings on S. 1377 before the Senate Select Committee on Indian Affairs, 95th Cong., 1st Sess., 76-77 (1977); Time Extension for Commencing Actions on Behalf of Indians: Hearing on S. 3377 and H.R. 13825 before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 92d Cong., 2d Sess., 23 (1972).With the enactment of the 1982 amendments, Congress, for the first time, imposed a statute of limitations on certain tort Page 470 U. S. 243 and contract claims for damages brought by individual Indians and Indian tribes. These amendments, enacted as the Indian Claims Limitation Act of 1982, Pub.L. 97-394, 96 Stat.1976, note following 28 U.S.C. § 2415, established a system for the final resolution of pre-1966 claims cognizable under §§ 2415(a) and (b). The Act directed the Secretary of the Interior to compile and publish in the Federal Register a list of all Indian claims to which the statute of limitations provided in 28 U.S.C. § 2415 applied. The Act also directed that the Secretary notify those Indians who may have an interest in any such claims. The Indians were then given an opportunity to submit additional claims; these were to be compiled and published on a second list. Actions for claims subject to the limitations periods of § 2415 that appeared on neither list were barred unless commenced within 60 days of the publication of the second list. If at any time the Secretary decides not to pursue a claim on one of the lists,"any right of action shall be barred unless the complaint is filed within one year after the date of publication [of the notice of the Secretary's decision] in the Federal Register."Pub.L. 97-394, 96 Stat.1978, § 5(c) (emphasis added). Thus, § 5(c) implicitly imposed a 1-year statute of limitations within which the Indians must bring contract and tort claims that are covered by §§ 2415(a) and (b) and not listed by the Secretary. So long as a listed claim is neither acted upon nor formally rejected by the Secretary, it remains live. [Footnote 15] Page 470 U. S. 244The legislative history of the successive amendments to § 2415 is replete with evidence of Congress' concern that the United States had failed to live up to its responsibilities as trustee for the Indians, and that the Department of the Interior had not acted with appropriate dispatch in meeting the deadlines provided by § 2415. E.g., Authorizing Indian Tribes to Bring Certain Actions on Behalf of their Members with Respect to Certain Legal Claims, and for Other Purposes, H.R.Rep. No. 97-954, p. 5 (1982). By providing a 1-year limitations period for claims that the Secretary decides not to pursue, Congress intended to give the Indians one last opportunity to file suits covered by § 2415(a) and (b) on their own behalf. Thus, we think the statutory framework adopted in 1982 presumes the existence of an Indian right of action not otherwise subject to any statute of limitations. It would be a violation of Congress' will were we to hold that a state statute of limitations period should be borrowed in these circumstances.BLachesThe dissent argues that we should apply the equitable doctrine of laches to hold that the Oneidas' claim is barred. Although it is far from clear that this defense is available in suits such as this one, [Footnote 16] we do not reach this issue today. Page 470 U. S. 245 While petitioners argued at trial that the Oneidas were guilty of laches, the District Court ruled against them, and they did not reassert this defense on appeal. As a result, the Court of Appeals did not rule on this claim, and we likewise decline to do so.CAbatementPetitioners argue that any cause of action for violation of the Nonintercourse Act of 1793 abated when the statute expired. They note that Congress specifically provided that the 1793 Act would be in force "for the term of two years, and from thence to the end of the then next session of Congress, and no longer." 1 Stat. 332, § 15. They contend that the 1796 version of the Nonintercourse Act repealed the 1793 version and enacted an entirely new statute, and that, under the common law abatement doctrine in effect at the time, any cause of action for violation of the statute finally abated on the expiration of the statute. [Footnote 17] We disagree.The pertinent provision of the 1793 Act, § 8, like its predecessor, § 4 of the 1790 Act, 1 Stat. 138, merely codified the principle that a sovereign act was required to extinguish aboriginal title, and thus that a conveyance without the sovereign's consent was void ab initio. See supra at 470 U. S. 233-234, Page 470 U. S. 246 and n. 3. All of the subsequent versions of the Nonintercourse Act, including that now in force, 25 U.S.C. § 177, contain substantially the same restraint on the alienation of Indian lands. In these circumstances, the precedents of this Court compel the conclusion that the Oneidas' cause of action has not abated. [Footnote 18]DRatificatonWe are similarly unpersuaded by petitioners' contention that the United States has ratified the unlawful 1795 conveyances. Petitioners base this argument on federally approved treaties in 1798 and 1802 in which the Oneidas ceded additional land to the State of New York. [Footnote 19] There is a question Page 470 U. S. 247 whether the 1802 treaty ever became effective. [Footnote 20] Assuming it did, neither the 1798 nor the 1802 treaty qualifies as federal ratification of the 1795 conveyance.The canons of construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians. Thus, it is well established that treaties should be construed liberally in favor of the Indians, Choctaw Nation v. United States, 318 U. S. 423, 318 U. S. 431-432 (1943); Choate v. Trapp, 224 U. S. 665, 224 U. S. 675 (1912), with ambiguous provisions interpreted to their benefit, McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 411 U. S. 174 (1973); Carpenter v. Shaw, 280 U. S. 363, 280 U. S. 367 (1930); Winters v. United States, 207 U. S. 564, 207 U. S. 576-577 (1908). "Absent explicit statutory language," Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 443 U. S. 690 (1979), this Court accordingly has refused to find that Congress has abrogated Indian treaty rights. Menominee Tribe v. United States, 391 U. S. 404 (1968). See generally F. Cohen, Handbook of Federal Indian Law 221-225 (1982 ed.) (hereinafter F. Cohen).The Court has applied similar canons of construction in nontreaty matters. Most importantly, the Court has held that congressional intent to extinguish Indian title must be Page 470 U. S. 248 "plain and unambiguous," United States v. Santa Fe Pacific R. Co., 314 U.S. at 314 U. S. 346, and will not be "lightly implied," id. at 314 U. S. 354. Relying on the strong policy of the United States "from the beginning to respect the Indian right of occupancy," id. at 354 U. S. 345 (citing Cramer v. United States, 261 U. S. 219, 261 U. S. 227 (1923)), the Court concluded that it "[c]ertainly" would require "plain and unambiguous action to deprive the [Indians] of the benefits of that policy," 314 U.S. at 314 U. S. 346. See F. Cohen.In view of these principles, the treaties relied upon by petitioners are not sufficient to show that the United States ratified New York's unlawful purchase of the Oneidas' land. The language cited by petitioners, a reference in the 1798 treaty to "the last purchase" and one in the 1802 treaty to "land heretofore ceded," far from demonstrates a plain and unambiguous intent to extinguish Indian title. See n19, supra. There is no indication that either the Senate or the President intended by these references to ratify the 1795 conveyance. See 1 Journal of the Executive proceedings of the Senate 273, 312, 408, 428 (1828). [Footnote 21]ENonjusticiabilityThe claim also is made that the issue presented by the Oneidas' action is a nonjusticiable political question. The counties contend first that Art. 1, § 8, cl. 3, of the Constitution explicitly commits responsibility for Indian affairs to Congress. [Footnote 22] Moreover, they argue that Congress has given exclusive civil remedial authority to the Executive for cases Page 470 U. S. 249 such as this one, citing the Nonintercourse Acts and the 1794 Treaty of Canandaigua. [Footnote 23] Thus, they say this case falls within the political question doctrine because of "a textually demonstrable constitutional commitment of the issue to a coordinate political department." Baker v. Carr, 369 U. S. 186, 369 U. S. 217 (1962). Additionally, the counties argue that the question is nonjusticiable because there is "an unusual need for unquestioning adherence to a political decision already made." Ibid. None of these claims is meritorious.This Court has held specifically that Congress' plenary power in Indian affairs under Art. 1, § 8, cl. 3, does not mean that litigation involving such matters necessarily entails nonjusticiable political questions. Delaware Tribal Business Committee v. Weeks, 430 U. S. 73, 430 U. S. 83-84 (1977). Accord, United States v. Sioux Nation, 448 U. S. 371, 448 U. S. 413 (1980). See also Baker v. Carr, supra, at 369 U. S. 215-217. If Congress' constitutional authority over Indian affairs does not render the Oneidas' claim nonjusticiable, a fortiori, Congress' delegation of authority to the President does not do so either. [Footnote 24]We are also unpersuaded that petitioners have shown "an unusual need for unquestioning adherence to a political decision already made." Baker v. Carr, supra, at 369 U. S. 217. Page 470 U. S. 250 The basis for their argument is the fact that, in 1968, the Commissioner of Indian Affairs declined to bring an action on behalf of the Oneidas with respect to the claims asserted in these cases. The counties cite no cases in which analogous decisions provided the basis for nonjusticiability. Cf. INS v. Chadha, 462 U. S. 919 (1983); United States v. Nixon, 418 U. S. 683 (1974); Powell v. McCormack, 395 U. S. 486 (1969). Our cases suggest that such "unusual need" arises most of the time, if not always, in the area of foreign affairs. Baker v. Carr, supra, at 369 U. S. 211-213; see also Gilligan v. Morgan, 413 U. S. 1 (1973). Nor do the counties offer convincing reasons for thinking that there is a need for "unquestioning adherence" to the Commissioner's decision. Indeed, the fact that the Secretary of the Interior has listed the Oneidas' claims under the § 2415 procedure suggests that the Commissioner's 1968 decision was not a decision on the merits of the Oneidas' claims. See n 15, supra. [Footnote 25]We conclude, therefore, that the Oneidas' claim is not barred by the political question doctrine.VFinally, we face the question whether the Court of Appeals correctly held that the federal courts could exercise ancillary jurisdiction over the counties' cross-claim against the State of New York for indemnification. The counties assert that this claim arises under both state and federal law. The Court of Appeals did not decide whether it was based on state or federal law. See 719 F.2d at 542-544. It held, however, that the 1790 and 1793 Nonintercourse Acts"placed New York on notice that Congress had exercised its power to regulate commerce with the Indians. Thus, anything New York Page 470 U. S. 251 thereafter did with respect to Indian lands carried with it a waiver of the State's eleventh amendment immunity."Id. at 543 (citing Edelman v. Jordan, 415 U. S. 651, 415 U. S. 672 (1974), and Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S. 279, 411 U. S. 283-284 (1973)). In essence, the Court of Appeals held that, by violating a federal statute, the State consented to suit in federal court by any party on any claim, state or federal, growing out of the same nucleus of operative facts as the statutory violation. This proposition has no basis in law.The counties' cross-claim for indemnification raises a classic example of ancillary jurisdiction. See Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 (1978). The Eleventh Amendment forecloses, however, the application of normal principles of ancillary and pendent jurisdiction where claims are pressed against the State. Pennhurst State School and Hospital v. Halderman, 465 U. S. 89 (1984). As we held in Pennhurst:"[N]either pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment. A federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment."Id. at 465 U. S. 121. The indemnification claim here, whether cast as a question of New York law or federal common law, is a claim against the State for retroactive monetary relief. In the absence of the State's consent, id. at 465 U. S. 99 (citing Clark v. Barnard, 108 U. S. 436, 108 U. S. 447 (1883)), the suit is barred by the Eleventh Amendment. Thus, as the Court of Appeals recognized, whether the State has consented to waive its constitutional immunity is the critical factor in whether the federal courts properly exercised ancillary jurisdiction over the counties' claim for indemnification. Pennhurst, supra.The only ground the Court of Appeals and the counties offer for believing that the State has consented to suit in federal court on this claim is the fact that it violated the 1793 Nonintercourse Act by purchasing the Oneidas' land. Page 470 U. S. 252 The counties assert that, because the Constitution specifically authorizes Congress "[t]o regulate Commerce . . . with the Indian Tribes," the States necessarily consented to suit in federal court with respect to enactments under this Clause. See County of Monroe v. Florida, 678 F.2d 1124 (CA2 1982) (making an analogous argument with respect to Congress' extradition power), cert. denied, 459 U.S. 1104 (1983); Mills Music, Inc. v. Arizona, 591 F.2d 1278, 1285 (CA9 1979) (making such an argument with respect to Congress' power over copyright and patents). Thus, they contend, Congress can abrogate the States' Eleventh Amendment immunity, and has done so by enacting the Nonintercourse Acts. By violating the 1793 Act, the State thus waived its immunity to suit in federal court with respect to such violations.Assuming, without deciding, that this reasoning is correct, it does not address the Eleventh Amendment problem here, for the counties' indemnification claim against the State does not arise under the 1793 Act. The counties cite no authority for their contrary view. They urge simply that the State would be unjustly enriched if the counties were forced to pay the Oneidas without indemnity from the State, and thus that the Court should "fashion a remedy" for the counties under the 1793 Act. This is an argument on the merits; it is not an argument that the indemnification claim arises under the Act. As we said in Pennhurst, "[a] State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued." 465 U.S. at 465 U. S. 99 (emphasis in original). The Eleventh Amendment bar does not vary with the merits of the claims pressed against the State.We conclude, therefore, that the counties' cross-claim for indemnity by the State raises a question of state law. We are referred to no evidence that the State has waived its constitutional immunity to suit in federal court on this question. [Footnote 26] Page 470 U. S. 253 Thus, under Pennhurst, we hold that the federal courts erred in exercising ancillary jurisdiction over this claim.VIThe decisions of this Court emphasize "Congress' unique obligation toward the Indians." Morton v. Mancari, 417 U. S. 535, 417 U. S. 555 (1974). The Government, in an amicus curiae brief, urged the Court to affirm the Court of Appeals. Brief for United States as Amicus Curiae 28. The Government recognized, as we do, the potential consequences of affirmance. It was observed, however, that"Congress has enacted legislation to extinguish Indian title and claims related thereto in other eastern States, . . . and it could be expected to do the same in New York, should the occasion arise."Id. at 29-30. See Rhode Island Indian Claims Settlement Act, 25 U.S.C. § 1701 et seq.; Maine Indian Claims Settlement Act, 25 U.S.C. § 1721 et seq. We agree that this litigation makes abundantly clear the necessity for congressional action.One would have thought that claims dating back for more than a century and a half would have been barred long ago. As our opinion indicates, however, neither petitioners nor we have found any applicable statute of limitations or other relevant legal basis for holding that the Oneidas' claims are barred, or otherwise have been satisfied. The judgment of the Court of Appeals is affirmed with respect to the finding of liability under federal common law, [Footnote 27] and reversed with respect to the exercise of ancillary jurisdiction over the Page 470 U. S. 254 counties' cross-claim for indemnification. The cases are remanded to the Court of Appeals for further proceedings consistent with our decision.It is so ordered | U.S. Supreme CourtOneida County v. Oneida Ind. Nation, 470 U.S. 226 (1985)County of Oneida, New York v. Oneida Indian Nationof New York StateNo. 83-1065Argued October 1, 1984Decided March 4, 1985*470 U.S. 226SyllabusRespondent Indian Tribes (hereafter respondents) brought an action in Federal District Court against petitioner counties (hereafter petitioners), alleging that respondents' ancestors conveyed tribal land to New York State under a 1795 agreement that violated the Nonintercourse Act of 1793 -- which provided that no person or entity could purchase Indian land without the Federal Government's approval -- and that thus the transaction was void. Respondents sought damages representing the fair rental value, for a specified 2-year period, of that part of the land presently occupied by petitioners. The District Court found petitioners liable for wrongful possession of the land in violation of the 1793 Act, awarded respondents damages, and held that New York, a third-party defendant brought into the case by petitioners' cross-claim, must indemnify petitioners for the damages owed to respondents. The Court of Appeals affirmed the liability and indemnification rulings, but remanded for further proceedings on the amount of damages.Held:1. Respondents have a federal common law right of action for violation of their possessory rights. Pp. 470 U. S. 233-240.(a) The possessory rights claimed by respondents are federal rights to the lands at issue. Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 414 U. S. 671. It has been implicitly assumed that Indians have a federal common law right to sue to enforce their aboriginal land rights, and their right of occupancy need not be based on a treaty, statute, or other Government action. Pp. 470 U. S. 233-236.(b) Respondents' federal common law right of action was not preempted by the Nonintercourse Acts. In determining whether a federal statute preempts common law causes of action, the relevant inquiry is whether the statute speaks directly to the question otherwise answered by federal common law. Here, the 1793 Act did not speak directly to the question of remedies for unlawful conveyances of Indian land, and there is no indication in the legislative history that Congress intended to preempt common law remedies. Milwaukee v. Illinois, Page 470 U. S. 227 451 U. S. 304, distinguished. And Congress' actions subsequent to the 1793 Act and later versions thereof demonstrate that the Acts did not preempt common law remedies. Pp. 470 U. S. 236-240.2. There is no merit to any of petitioners' alleged defenses. Pp. 470 U. S. 240-250.(a) Where, as here, there is no controlling federal limitations period, the general rule is that a state limitations period for an analogous cause of action will be borrowed and applied to the federal action, provided that application of the state statute would not be inconsistent with underlying federal policies. In this litigation, the borrowing of a state limitations period would be inconsistent with the federal policy against the application of state statutes of limitations in the context of Indian claims. Pp. 470 U. S. 240-244.(b) This Court will not reach the issue of whether respondents' claims are barred by laches where the defense was unsuccessfully asserted at trial but not reasserted on appeal, and thus not ruled upon by the Court of Appeals. Pp. 470 U. S. 244-245.(c) Respondents' cause of action did not abate when the 1793 Act expired. That Act merely codified the principle that a sovereign act was required to extinguish aboriginal title, and thus that a conveyance without the sovereign's consent was void ab initio. All subsequent versions of the Act contain substantially the same restraint on alienation of Indian lands. Pp. 470 U. S. 245-246.(d) In view of the principles that treaties with Indians should be construed liberally in favor of the Indians, and that congressional intent to extinguish Indian title must be plain and unambiguous, and will not be lightly implied, the 1798 and 1802 Treaties in which respondents ceded additional land to New York are not sufficient to show that the United States ratified New York's unlawful purchase of the land in question. Pp. 470 U. S. 246-248.(e) Nor are respondents' claims barred by the political question doctrine. Congress' constitutional authority over Indian affairs does not render the claims nonjusticiable, and, a fortiori, Congress' delegation of authority to the President does not do so either. Nor have petitioners shown any convincing reasons for thinking that there is a need for "unquestioning adherence" to the Commissioner of Indian Affairs' declining to bring an action on respondents' behalf with respect to the claims in question. Pp. 470 U. S. 248-250.3. The courts below erred in exercising ancillary jurisdiction over petitioners' cross-claim for indemnity by the State. The cross-claim raises a question of state law, and there is no evidence that the State has waived its constitutional immunity under the Eleventh Amendment to suit in federal court on this question. Pp. 470 U. S. 250-253.719 F.2d 525, affirmed in part, reversed in part, and remanded. Page 470 U. S. 228POWELL, J., delivered the opinion of the Court, in which BLACKMUN and O'CONNOR, JJ., joined, in all but Part V of which BRENNAN and MARSHALL, JJ., joined, and in Part V of which BURGER, C.J., and WHITE and REHNQIST, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 470 U. S. 254. STEVENS, J., filed a separate statement concurring in the judgment in part, post, p. 470 U. S. 254, and an opinion dissenting in part, in which BURGER, C.J., and WHITE and REHNQUIST, JJ., joined, post, p. 470 U. S. 255. Page 470 U. S. 229 |
368 | 1969_402 | MR. JUSTICE MARSHALL delivered the opinion of the Court.In this case, the United States challenges the treatment given to its claim for unpaid taxes against an insolvent Page 397 U. S. 323 corporation in reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C. §§ 501-676. Under the reorganization plan approved by the District Court, the debtor, Hancock Trucking, Inc., will sell its chief asset, its Interstate Commerce Commission operating rights, to Hennis Freight Lines, Inc., for $935,000. The sale contract provides for a $300,000 downpayment, with the balance to be paid in 78 monthly installments. Under the reorganization plan, the downpayment will be used to satisfy certain wage and state and local tax claims in full, to satisfy 20% of the claims of the unsecured creditors, and to satisfy about 10% of the United States' tax claim of $375,386.55. The remainder of the United States' claim will he paid out of the monthly installments. The plan, an atypical one for a corporate reorganization, does not contemplate the continued existence of the debtor as a going concern, but amounts in substance to a liquidation.The United States objects to that aspect of the plan that provides for partial or complete payment of the claims of unsecured creditors and state and local government units before full payment of the federal tax claims. This, the Government urges, violates the command of § 3-166 of the Revised Statutes, 31 U.S.C. § 191, that "[w]henever any person indebted to the United States is insolvent . . . the debts due to the United States shall be first satisfied." Respondent urges that § 3466 does not apply to Chapter X proceedings, but that the United States is entitled only to "payment" of its tax claim, as provided by § 199 of the Bankruptcy Act, 11 U.S.C. § 599.The Court of Appeals accepted respondent's theory, and affirmed the order of the District Court approving the plan. 407 F.2d 635 (C.A. 7th Cir.1969). We granted certiorari, 396 U.S. 874 (1969), and we reverse. Page 397 U. S. 324Since the earliest days of the Republic, § 3466 and its predecessors have given the Government priority over all other claimants in collecting debts due it from insolvent debtors. [Footnote 1] The present statute has existed almost unchanged since 1797, [Footnote 2] and its historical roots reach back to the similar priority of the Crown in England, an aspect of the royal prerogative, founded upon a policy of protecting the public revenues. [Footnote 3] The same policy underlies the federal statute, United States v. State Bank of North Carolina, 6 Pet. 29, 31 U. S. 35 (1832), and it is established that the terms of § 3466 are to be liberally construed to achieve this broad purpose. Beaston v. Farmers' Bank, 12 Pet. 102, 37 U. S. 134 (1838); Bramwell v. United States Fidelity Co., 269 U. S. 483, 269 U. S. 487 (1926).Section 3466 applies literally to the situation here. The debtor is concededly insolvent, and it is established that a tax debt is a "debt due to the United States" within the meaning of the statute. Price v. United States, 269 U. S. 492, 269 U. S. 499 (1926). No provision of Chapter X explicitly excepts corporate debtors in reorganization from the application of § 3466, and so the only remaining question is whether the legislative scheme established in Chapter X, either by logical inconsistency or other manifestation of congressional intent, implies such an exception.In approaching a claim of an implied exception to § 3466, we start with the principle, noted above, that the statute must be given a liberal construction consonant with the public policy underlying it. Applying that principle to an earlier claim that a statutory scheme implicitly excluded § 3466, this Court held that"[o]nly Page 397 U. S. 325 the plainest inconsistency would warrant our finding an implied exception to the operation of so clear a command as that of § 3466."United States v. Emory, 314 U. S. 423, 314 U. S. 433 (1941).Here, the Court of Appeals discerned an intent not to apply § 3466 to Chapter X proceedings from § 199 of the Bankruptcy Act, which forbids the approval of any reorganization plan which does not provide for the "payment" of taxes or customs due to the United States, unless the Secretary of the Treasury accepts "a lesser amount." [Footnote 4] The Court of Appeals further supported its inference of exclusionary intent from §§ 216(7) and 221 of the Act, 11 U.S.C. §§ 616(7) and 621. Section 216(7) provides that, where a class of creditors dissents from a reorganization plan, the District Court shall provide "adequate protection for the realization by them of the value of their claims against the property" in any of four ways, the last and most general of which is by"such method as will, under and consistent with Page 397 U. S. 326 the circumstances of the particular case, equitably and fairly provide such protection."Section 221 merely sums up the applicable tests for a valid reorganization plan by providing that "[t]he judge shall confirm a plan if satisfied that" § 199 has been complied with, and that "the plan is fair and equitable, and feasible."The Court of Appeals reasoned from these provisions to the implied exclusion of the operation of § 3466 as follows:"Within Chapter X, §§ 199, 216 and 221 are interrelated statutes and part of a studied statutory plan. Section 199 outlines the nature of the government's tax claim 'priority,' and the two other sections establish an equitable standard to govern the method of payment. If, as the government would have us hold, § 3466 creates an absolute right to first payment in addition to full payment, there would be little need for §§ 199, 216(7) and 221. These sections apply specifically to Chapter X proceedings, and should control over the more general and conflicting direction of § 3466."407 F.2d at 638.In our view, these provisions are not logically inconsistent with the terms of § 3466, nor would they be rendered redundant if the older statute applied, nor does their language or legislative history reveal a purpose incongruous with its application.In the first place, § 216(7) has nothing to do with the priorities of different classes of claimants under Chapter X. That section merely provides that, where an affected class of creditors (and here the United States itself constitutes the whole of such a class) dissents from a plan, their claims are to be dealt with in one of the four ways specified, one of which is that those claims must be disposed of "equitably and fairly." Page 397 U. S. 327This Court has long held that these words, along with the words "fair and equitable" in § 221, in no way authorize a District Court to ignore or erode priorities otherwise granted by law, and it follows that this language cannot be taken to exclude by implication an explicit statutory priority, such as that granted the United States by § 3466. In short, the words "fair and equitable" in Chapter X are terms of art, and no plan can be "fair and equitable" which compromises the rights of senior creditors in order to protect junior creditors. Case v. Los Angeles Lumber Co., 308 U. S. 106, 308 U. S. 115-116 (1939); Consolidated Rock Co. v. Du Bois, 312 U. S. 510, 312 U. S. 527-529 (1941).We turn then to the argument upon which respondent chiefly relies for his claim that § 3466 does not reach to Chapter X proceedings -- the alleged inconsistency between application of the "first satisfied" requirement and the terms and purposes of § 199. As already noted, § 199 provides that the United States shall have "payment" of its tax claims in Chapter X proceedings unless the Secretary of the Treasury accepts "a lesser amount." respondent argues and the Court of Appeals held that this establishes by negative implication that Congress did not mean the United States to be able to insist upon the more onerous remedy of payment first in time. [Footnote 5] Page 397 U. S. 328As a matter of logic, we see no inconsistency between a requirement of payment and a requirement of first satisfaction. Congress surely could have provided that the United States receive payment out of a limited fund at the expense of other claimants, and quite consistently provided that, when the wherewithal to make such payment became available in installments over time, the United States should also have the right to claim the first of those installments and each succeeding one until its debt was satisfied. [Footnote 6] Separate provisions to this effect in the same statute could certainly be read in harmony with each other, and there is no reason why § 3466 should not be read to supplement the requirement of payment contained in § 199 in the same fashion.Nor is § 199 redundant if § 3466 applies in Chapter X proceedings on the ground that a requirement of first satisfaction necessarily implies a requirement of payment. Section 3466 applies only to insolvent debtors. [Footnote 7] Page 397 U. S. 329 Yet Chapter X proceedings are not open merely to corporations that are insolvent in that their liabilities exceed their assets, but also to those that are solvent in the bankruptcy or asset-liability sense, and yet are unable to meet their obligations as they mature. Bankruptcy Act § 130(1), 11 U.S.C. § 530(1). Thus, § 199 does not merely give the Government rights already granted by implication in § 3466, but extends the Government's priority, for tax claims at least, to solvent corporations in Chapter X reorganization.Thus, on the face of the statute, no inconsistency arises from applying both § 3466 and § 199 to Chapter X proceedings, much less the "plain inconsistency" required if respondent is to prevail under the test of United States v. Emory, supra. That, in itself, strongly suggests that § 3466 should apply here, and our examination of the background and legislative history of § 199 and of Chapter X generally does not reveal a contrary intent on the part of Congress.Before the reorganization legislation of the 1930's, the principal method of reorganizing corporations that were unable to meet their debts was the equity receivership. This judge-made device was designed to preserve the debtor business as a going concern by cancelling claims against it, in return for which cancellation the claimants received debt or equity interests in a new corporation, which then acquired the assets of the old corporation in a judicial sale. See T. Finletter, The Law of Bankruptcy Reorganization 1-17 (1939). By 1926, it was established that § 3466 applied to give the United States an absolute priority for payment of debts due it from insolvent corporations in equity receivership. Price v. United States, 269 U.S. at 269 U. S. 502-503, and see Blair, The Priority of the United States in Equity Receiverships, 39 Harv.L.Rev. 1 (1925).In 1933, Congress enacted § 77 of the Bankruptcy Act, 47 Stat. 1474, providing a statutory procedure for the Page 397 U. S. 330 reorganization of railroads. Section 77, as well as later corporate reorganization statutes discussed below, was designed to follow the general format of the equity receivership. As one of the early commentators on the federal statutes has noted, "[t]he principles of the equity receivership underlie nearly every substantive provision of the [reorganization acts]." Finletter, supra, at 3. These statutes were not, of course, mere codifications of the law governing equity receiverships. They were designed in part to correct abuses and inefficiencies that had existed under the prior regime. Duparquet Co. v. Evans, 297 U. S. 216, 297 U. S. 218-219 (1936). However, the problems of the equity receivership that led to the legislative intervention did not include the Government's priority under § 3466, a relatively uncontroversial aspect of the receivership procedure.Nothing in § 77 casts any doubt on the continued priority of the United States under § 3466. Indeed, the only provision in the new statute affecting the claims of the United States was § 77(e), which provided in pertinent part:"If the United States of America is directly a creditor or stockholder, the Secretary of the Treasury is hereby authorized to accept or reject a plan in respect of the interests or claims of the United States."47 Stat. 1478. The purpose of this provision was to overcome the effect of two prior rulings of the Attorney General that the Secretary of the Treasury lacked authority to compromise claims of indebtedness owed to the Government by the railroads, 33 Op.Atty.Gen. 423 (1923), 34 Op.Atty.Gen. 108 (1924). [Footnote 8] Page 397 U. S. 331In 1934, Congress enacted § 77B of the Bankruptcy Act, 48 Stat. 911, which provided a reorganization scheme for corporations generally, closely modeled on the railroad reorganization scheme of § 77; § 77B(e)(1) granted the Secretary of the Treasury power to compromise federal claims, in language almost identical with that of 77(e). 48 Stat. 918. There is no language in the statute, and nothing in its history, to suggest any intention to alter the established priority of the United States under § 3466.In 1935, the Secretary of the Treasury called the attention of Congress to the fact that the courts were construing § 77B(e)(1) to include the United States among the general creditors in reorganization proceedings, so that plans disapproved by the Secretary for failure to satisfy a federal claim could nevertheless be confirmed if the necessary majority of general creditors approved. S.Rep. No. 953, 74th Cong., 1st Sess. (1935). The Secretary proposed an amendment, which, after some weakening in the House, see S.Rep. No. 1386, 74th Cong., 1st Sess. (1935), was adopted. [Footnote 9] 49 Stat. 966 Page 397 U. S. 332 (1935). In its relevant provisions, the amendment was identical with present § 199, and the 1938 revisions which culminated in the replacement of § 77B by present Chapter X did not affect it.Thus, § 199 is derived from an enactment designed to grant the Government the power to compromise its claims against debtors, and an amendment designed to ensure priority for federal claims over the claims of general creditors. Nothing in this background lends any support to respondent's claim that the draftsmen of Chapter X meant to provide an exception to the operation of § 3466 for reorganization proceedings under the new statute. Indeed, the established practice of applying § 3466 to equity receiverships, the acknowledged predecessor of the Chapter X proceeding, combined with the failure to indicate in any way an intent to alter that practice in the new statutes, supports the conclusion that Congress affirmatively meant 3466 to apply to statutory reorganization. [Footnote 10]As we noted at the outset, § 3466 must apply according to its terms except where expressly superseded, or where excluded by a later enactment "plainly inconsistent" with it. Here, the statute literally applies, and no plain inconsistency with the scheme of Chapter X appears. The terms of § 3466 are clearly not satisfied by the reorganization plan here in question, which provides payment in part to general creditors and other nonpreferred claimants [Footnote 11] before satisfaction of the federal tax Page 397 U. S. 333 claim. Therefore the judgment upholding the plan must be reversed, and the case remanded to the Court of Appeals for further proceedings consistent with this opinion.Reversed | U.S. Supreme CourtUnited States v. Key, 397 U.S. 322 (1970)United States v. KeyNo. 402Argued January 21, 1970Decided March 30, 1970397 U.S. 322SyllabusThe United States challenges, as violative of § 3466 of the Revised Statutes, a reorganization plan under Chapter X of the Bankruptcy Act under which claims of junior creditors were to be partially or fully paid before full payment was made of the Government's tax claims. Section 3466 provides that, "[w]henever any person indebted to the United States is insolvent . . . , the debts due to the United States shall be first satisfied." The District Court approved the plan. The Court of Appeals affirmed on the ground that § 3466 was impliedly inapplicable by virtue of the statutory plan of Chapter X proceedings, § 199 of the Act providing that the United States shall have "payment," of its tax claims in such proceedings unless the Secretary of the Treasury accepts "a lesser amount," and §§ 216 and 221 establishing an equitable standard to govern the method of payment.Held: The United States is entitled to absolute priority of payment under § 3466 of the Revised Statutes over the other claimants in the reorganization here involved, there being no inconsistency between the terms of that section and the provisions of Chapter X. Pp. 397 U. S. 324-333.407 F.2d 635, reversed and remanded. |
369 | 2002_01-1368 | employees, and that employers could not evade leave obligations simply by hiring men. Unlike the statutes at issue in City of Boerne, Kimel, and Garrett, which applied broadly to every aspect of state employers' operations, the FMLA is narrowly targeted at the faultline between work and family-precisely where sex-based overgeneralization has been and remains strongest-and affects only one aspect of the employment relationship. Also significant are the many other limitations that Congress placed on the FMLA's scope. See Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 647. For example, the FMLA requires only unpaid leave, § 2612(a)(1); applies only to employees who have worked for the employer for at least one year and provided 1,250 hours of service within the last 12 months, § 2611(2)(A); and does not apply to employees in high-ranking or sensitive positions, including state elected officials, their staffs, and appointed policymakers, §§2611(2)(B)(i) and (3), 203(e)(2)(C). pp.726-740.273 F.3d 844, affirmed.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 740. STEVENS, J., filed an opinion concurring in the judgment, post, p. 740. SCALIA, J., filed a dissenting opinion, post, p. 741. KENNEDY, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined, post, p.744.Paul G. Taggart, Deputy Attorney General of Nevada, argued the cause for petitioners. With him on the briefs were Frankie Sue Del Papa, Attorney General, and Traci L. Lovitt.Cornelia T. L. Pillard argued the cause for respondent Hibbs. With her on the brief were Jonathan J. Frankel, Judith L. Lichtman, and Treva J. Hearne.Assistant Attorney General Dinh argued the cause for the United States. With him on the brief were Solicitor General Olson, Assistant Attorneys General Boyd and McCallum, Deputy Solicitor General Clement, Patricia A. Millett, Mark B. Stern, and Kathleen Kane. **Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Bill Pryor, Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and Charles B. Campbell, Deputy Solicitor Gen-724CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.The Family and Medical Leave Act of 1993 (FMLA or Act) entitles eligible employees to take up to 12 work weeks of unpaid leave annually for any of several reasons, including the onset of a "serious health condition" in an employee's spouse, child, or parent. 107 Stat. 9, 29 U. S. C. § 2612(a) (l)(C). The Act creates a private right of action to seek both equitable relief and money damages "against any employer (including a public agency) in any Federal or State court of competent jurisdiction," § 2617(a)(2), should that em-eral, and by the Attorneys General for their respective States as follows:Bruce M. Botelho of Alaska, M. Jane Brady of Delaware, Earl I. Anzai of Hawaii, Steve Carter of Indiana, Don Stenberg of Nebraska, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, Paul G. Summers of Tennessee, John Cornyn of Texas, Mark Shurtleff of Utah, and Jerry W Kilgore of Virginia; for the Coalition for Local Sovereignty by Kenneth B. Clark; and for the Pacific Legal Foundation by Deborah J. La Fetra.Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, Denise A. Hartman, Robert H. Easton, and David Axinn, Assistant Solicitors General, and Hilary Klein, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, James Ryan of Illinois, Michael Hatch of Minnesota, Patricia A. Madrid of New Mexico, and Christine Q Gregoire of Washington; for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, Laurence Gold, and Michael H. Gottesman; for the Lawyers' Committee for Civil Rights Under Law et al. by Sidney S. Rosdeitcher, Barbara R. Arnwine, Thomas J. Henderson, Michael Foreman, Vincent A. Eng, Dennis Courtland Hayes, and Angela Ciccolo; for the National Women's Law Center et al. by Walter Dellinger, Pamela Harris, Marcia D. Greenberger, Judith C. Appelbaum, and Dina R. Lassow; for Senator Christopher Dodd et al. by Mark E. Haddad and Carter G. Phillips; and for Alice Kessler-Harris et al. by Isabelle Katz Pinzler, Conrad K. Harper, and William T. Russell, Jr.725ployer "interfere with, restrain, or deny the exercise of" FMLA rights, § 2615(a)(1). We hold that employees of the State of Nevada may recover money damages in the event of the State's failure to comply with the family-care provision of the Act.Petitioners include the Nevada Department of Human Resources (Department) and two of its officers. Respondent William Hibbs (hereinafter respondent) worked for the Department's Welfare Division. In April and May 1997, he sought leave under the FMLA to care for his ailing wife, who was recovering from a car accident and neck surgery. The Department granted his request for the full 12 weeks of FMLA leave and authorized him to use the leave intermittently as needed between May and December 1997. Respondent did so until August 5, 1997, after which he did not return to work. In October 1997, the Department informed respondent that he had exhausted his FMLA leave, that no further leave would be granted, and that he must report to work by November 12,1997. Respondent failed to do so and was terminated.Respondent sued petitioners in the United States District Court seeking damages and injunctive and declaratory relief for, inter alia, violations of 29 U. S. C. § 2612(a)(1)(C). The District Court awarded petitioners summary judgment on the grounds that the FMLA claim was barred by the Eleventh Amendment and that respondent's Fourteenth Amendment rights had not been violated. Respondent appealed, and the United States intervened under 28 U. S. C. § 2403 to defend the validity of the FMLA's application to the States. The Ninth Circuit reversed. 273 F.3d 844 (2001).We granted certiorari, 536 U. S. 938 (2002), to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court for violation of § 2612(a)(1)(C). Compare Kazmier v.726Widmann, 225 F.3d 519, 526, 529 (CA5 2000), with 273 F.3d 844 (case below).For over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 363 (2001); Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72-73 (2000); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 669-670 (1999); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996); Hans v. Louisiana, 134 U. S. 1, 15 (1890).Congress may, however, abrogate such immunity in federal court if it makes its intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment. See Garrett, supra, at 363; Blatchford v. Native Village of Noatak, 501 U. S. 775, 786 (1991) (citing Dellmuth v. Muth, 491 U. S. 223, 228 (1989)). The clarity of Congress' intent here is not fairly debatable. The Act enables employees to seek damages "against any employer (including a public agency) in any Federal or State court of competent jurisdiction," 29 U. S. C. § 2617(a)(2), and Congress has defined "public agency" to include both "the government of a State or political subdivision thereof" and "any agency of ... a State, or a political subdivision of a State," §§ 203(x), 2611(4)(A)(iii). We held in Kimel that, by using identicallanguage in the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., Congress satisfied the clear statement rule of Dellmuth. 528 U. S., at 73-78. This case turns, then, on whether Congress acted within its constitutional authority when it sought to abrogate the States' immunity for purposes of the FMLA's family-leave provision.In enacting the FMLA, Congress relied on two of the powers vested in it by the Constitution: its Article I commerce power and its power under § 5 of the Fourteenth Amendment727to enforce that Amendment's guarantees.1 Congress may not abrogate the States' sovereign immunity pursuant to its Article I power over commerce. Seminole Tribe, supra. Congress may, however, abrogate States' sovereign immunity through a valid exercise of its § 5 power, for "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment." Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976) (citation omitted). See also Garrett, supra, at 364; Kimel, supra, at 80.Two provisions of the Fourteenth Amendment are relevant here: Section 5 grants Congress the power "to enforce" the substantive guarantees of § i-among them, equal protection of the laws-by enacting "appropriate legislation." Congress may, in the exercise of its § 5 power, do more than simply proscribe conduct that we have held unconstitutional. " 'Congress' power "to enforce" the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text.'" Garrett, supra, at 365 (quoting Kimel, supra, at 81); City of Boerne v. Flores, 521 U. S. 507, 536 (1997); Katzenbach v. Morgan, 384 U. S. 641, 658 (1966). In other words, Congress may enact so-called prophylactic1 Compare 29 U. S. C. § 2601(b)(1) ("It is the purpose of this Act ... to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity") with § 2601(b)(5) ("to promote the goal of equal employment opportunity for women and men, pursuant to [the Equal Protection C]lause") and § 2601(b)(4) ("to accomplish [the Act's other purposes] in a manner that, consistent with the Equal Protection Clause ... , minimizes the potential for employment discrimination on the basis of sex"). See also S. Rep. No. 103-3, p. 16 (1993) (the FMLA "is based not only on the Commerce Clause, but also on the guarantees of equal protection and due process embodied in the 14th Amendment"); H. R. Rep. No. 103-8, pt. 1, p. 29 (1993) (same).728legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.City of Boerne also confirmed, however, that it falls to this Court, not Congress, to define the substance of constitutional guarantees. 521 U. S., at 519-524. "The ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch." Kimel, 528 U. S., at 81. Section 5 legislation reaching beyond the scope of § l's actual guarantees must be an appropriate remedy for identified constitutional violations, not "an attempt to substantively redefine the States' legal obligations." Id., at 88. We distinguish appropriate prophylactic legislation from "substantive redefinition of the Fourteenth Amendment right at issue," id., at 81, by applying the test set forth in City of Boerne: Valid § 5 legislation must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end," 521 U. S., at 520.The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.2 We have held that statutory classifications that distinguish between males and females are subject to heightened scrutiny. See, e. g., Craig v. Boren, 429 U. S. 190, 197-199 (1976). For a gender-based classification to withstand such scrutiny, it must "serv[e] important governmental objectives," and "the discriminatory means employed [must be] substantially related to the achievement of those objectives." United2 The text of the Act makes this clear. Congress found that, "due to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men." 29 U. S. C. § 2601(a)(5). In response to this finding, Congress sought "to accomplish the [Act's other] purposes ... in a manner that ... minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available ... on a gender-neutral basis[,] and to promote the goal of equal employment opportunity for women and men .... " §§2601(b)(4) and (5) (emphasis added).729States v. Virginia, 518 U. S. 515, 533 (1996) (citations and internal quotation marks omitted). The State's justification for such a classification "must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." Ibid. We now inquire whether Congress had evidence of a pattern of constitutional violations on the part of the States in this area.The history of the many state laws limiting women's employment opportunities is chronicled in-and, until relatively recently, was sanctioned by-this Court's own opinions. For example, in Bradwell v. State, 16 Wall. 130 (1873) (Illinois), and Goesaert v. Cleary, 335 U. S. 464, 466 (1948) (Michigan), the Court upheld state laws prohibiting women from practicing law and tending bar, respectively. State laws frequently subjected women to distinctive restrictions, terms, conditions, and benefits for those jobs they could take. In Muller v. Oregon, 208 U. S. 412, 419, n. 1 (1908), for example, this Court approved a state law limiting the hours that women could work for wages, and observed that 19 States had such laws at the time. Such laws were based on the related beliefs that (1) a woman is, and should remain, "the center of home and family life," Hoyt v. Florida, 368 U. S. 57, 62 (1961), and (2) "a proper discharge of [a woman's] maternal functions-having in view not merely her own health, but the well-being of the race-justif[ies] legislation to protect her from the greed as well as the passion of man," Muller, supra, at 422. Until our decision in Reed v. Reed, 404 U. S. 71 (1971), "it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any 'basis in reason' "-such as the above beliefs-"could be conceived for the discrimination." Virginia, supra, at 531 (quoting Goesaert, supra, at 467).Congress responded to this history of discrimination by abrogating States' sovereign immunity in Title VII of the Civil Rights Act of 1964, 78 Stat. 255, 42 U. S. C. § 2000e-2(a),730and we sustained this abrogation in Fitzpatrick. But state gender discrimination did not cease. "[I]t can hardly be doubted that ... women still face pervasive, although at times more subtle, discrimination ... in the job market." Frontiero v. Richardson, 411 U. S. 677, 686 (1973). According to evidence that was before Congress when it enacted the FMLA, States continue to rely on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits. Reliance on such stereotypes cannot justify the States' gender discrimination in this area. Virginia, supra, at 533. The long and extensive history of sex discrimination prompted us to hold that measures that differentiate on the basis of gender warrant heightened scrutiny; here, as in Fitzpatrick, the persistence of such unconstitutional discrimination by the States justifies Congress' passage of prophylactic § 5 legislation.As the FMLA's legislative record reflects, a 1990 Bureau of Labor Statistics (BLS) survey stated that 37 percent of surveyed private-sector employees were covered by maternity leave policies, while only 18 percent were covered by paternity leave policies. S. Rep. No. 103-3, pp. 14-15 (1993). The corresponding numbers from a similar BLS survey the previous year were 33 percent and 16 percent, respectively. Ibid. While these data show an increase in the percentage of employees eligible for such leave, they also show a widening of the gender gap during the same period. Thus, stereotype-based beliefs about the allocation of family duties remained firmly rooted, and employers' reliance on them in establishing discriminatory leave policies remained widespread.33 While this and other material described leave policies in the private sector, a 50-state survey also before Congress demonstrated that "[t]he proportion and construction of leave policies available to public sector employees differs little from those offered private sector employees." The Parental and Medical Leave Act of 1986: Joint Hearing before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor731Congress also heard testimony that "[p]arentalleave for fathers ... is rare. Even ... [w]here child-care leave policies do exist, men, both in the public and private sectors, receive notoriously discriminatory treatment in their requests for such leave." Joint Hearing 147 (Washington Council of Lawyers) (emphasis added). Many States offered women extended "maternity" leave that far exceeded the typical 4to 8-week period of physical disability due to pregnancy and childbirth,4 but very few States granted men a parallel benefit: Fifteen States provided women up to one year of extended maternity leave, while only four provided men with the same. M. Lord & M. King, The State Reference Guide to Work-Family Programs for State Employees 30 (1991). This and other differential leave policies were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women's work. 5Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., 33 (1986) (hereinafter Joint Hearing) (statement of Meryl Frank, Director of the Yale Bush Center Infant Care Leave Project). See also id., at 29-30.4 See, e. g., id., at 16 (six weeks is the medically recommended pregnancy disability leave period); H. R. Rep. No. 101-28, pt. 1, p. 30 (1989) (referring to Pregnancy Discrimination Act legislative history establishing four to eight weeks as the medical recovery period for a normal childbirth).5 For example, state employers' collective-bargaining agreements often granted extended "maternity" leave of six months to a year to women only. Gerald McEntee, President of the American Federation of State, County and Municipal Employees, AFL-CIO, testified that "the vast majority of our contracts, even though we look upon them with great pride, really cover essentially maternity leave, and not paternity leave." The Parental and Medical Leave Act of 1987: Hearings before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 100th Cong., 1st Sess., pt. 1, p. 385 (1987) (hereinafter 1987 Senate Labor Hearings). In addition, state leave laws often specified that catchallieave-without-pay provisions could be used for extended maternity leave, but did not authorize such leave for paternity purposes. See, e. g., Family and Medical Leave Act of 1987: Joint Hearing before the House Committee on Post Office and Civil Service, 100th Cong.,732Finally, Congress had evidence that, even where state laws and policies were not facially discriminatory, they were applied in discriminatory ways. It was aware of the "serious problems with the discretionary nature of family leave," because when "the authority to grant leave and to arrange the length of that leave rests with individual supervisors," it leaves "employees open to discretionary and possibly unequal treatment." H. R. Rep. No. 103-8, pt. 2, pp. 10-11 (1993). Testimony supported that conclusion, explaining that "[t]he lack of uniform parental and medical leave policies in the work place has created an environment where [sex] discrimination is rampant." 1987 Senate Labor Hearings, pt. 2, at 170 (testimony of Peggy Montes, Mayor's Commission on Women's Affairs, City of Chicago).In spite of all of the above evidence, JUSTICE KENNEDY argues in dissent that Congress' passage of the FMLA was unnecessary because "the States appear to have been ahead of Congress in providing gender-neutral family leave benefits," post, at 750, and points to Nevada's leave policies in particular, post, at 755. However, it was only "[s]ince Federal family leave legislation was first introduced" that the States had even "begun to consider similar family leave initiatives." S. Rep. No. 103-3, at 20; see also S. Rep. No. 102-1st Sess., 2-5 (1987) (Rep. Gary Ackerman recounted suffering expressly sex-based denial of unpaid leave of absence where benefit was ostensibly available for "child care leave").Evidence pertaining to parenting leave is relevant here because state discrimination in the provision of both types of benefits is based on the same gender stereotype: that women's family duties trump those of the workplace. JUSTICE KENNEDY'S dissent (hereinafter dissent) ignores this common foundation that, as Congress found, has historically produced discrimination in the hiring and promotion of women. See post, at 748-749. Consideration of such evidence does not, as the dissent contends, expand our § 5 inquiry to include "general gender-based stereotypes in employment." Post, at 749 (emphasis added). To the contrary, because parenting and family leave address very similar situations in which work and family responsibilities conflict, they implicate the same stereotypes.73368, p. 77 (1991) (minority views of Sen. Durenberger) ("[S]o few states have elected to enact similar legislation at the state level").Furthermore, the dissent's statement that some States "had adopted some form of family-care leave" before the FMLA's enactment, post, at 750, glosses over important shortcomings of some state policies. First, seven States had childcare leave provisions that applied to women only. Indeed, Massachusetts required that notice of its leave provisions be posted only in "establishment[s] in which females are employed." 6 These laws reinforced the very stereotypes that Congress sought to remedy through the FMLA. Second, 12 States provided their employees no family leave, beyond an initial childbirth or adoption, to care for a seriously ill child or family member.7 Third, many States pro-6 Mass. Gen. Laws, ch. 149, § 105D (West 1997) (providing leave to "female employee[s]" for childbirth or adoption); see also 3 Colo. Code Regs. § 708-1, Rule 80.8 (2002) (pregnancy disability leave only); Iowa Code § 216.6(2) (2000) (former § 601A.6(2)) (same); Kan. Admin. Regs. 21-32-6(d) (2003) ("a reasonable period" of maternity leave for female employees only); N. H. Stat. Ann. § 354-A:7(VI)(b) (Michie Supp. 2000) (pregnancy disability leave only); La. Stat. Ann. § 23:1008(A)(2) (West Supp. 1993) (repealed 1997) (4-month maternity leave for female employees only); Tenn. Code Ann. §4-21-408(a) (1998) (same).The dissent asserts that four of these schemes-those of Colorado, Iowa, Louisiana, and New Hampshire-concern "pregnancy disability leave only." Post, at 752. But Louisiana provided women with four months of such leave, which far exceeds the medically recommended pregnancy disability leave period of six weeks. See n. 4, supra. This genderdiscriminatory policy is not attributable to any different physical needs of men and women, but rather to the invalid stereotypes that Congress sought to counter through the FMLA. See supra, at 731.7 See 3 Colo. Code Regs. § 708-1, Rule 80.8 (2002); Del. Code Ann., Tit. 29, § 5116 (1997); Iowa Code § 216.6(2) (2000); Kan. Admin. Regs. 21-32-6 (2003); Ky. Rev. Stat. Ann. § 337.015 (Michie 2001); La. Stat. Ann. § 23:1008(A)(2) (West Supp. 1993); Mass. Gen. Laws, ch. 149, § 105(D) (West 1997); Mo. Rev. Stat. § 105.271 (2000); N. H. Stat. Ann. § 354-A:7(VI)(b) (Michie Supp. 2000); N. Y. Lab. Law §201-c (West 2002); Tenn. Code734vided no statutorily guaranteed right to family leave, offering instead only voluntary or discretionary leave programs. Three States left the amount of leave time primarily in employers' hands.8 Congress could reasonably conclude that such discretionary family-leave programs would do little to combat the stereotypes about the roles of male and female employees that Congress sought to eliminate. Finally, four States provided leave only through administrative regulations or personnel policies, which Congress could reasonably conclude offered significantly less firm protection than a federallaw.9 Against the above backdrop of limited state leave policies, no matter how generous petitioners' own may have been, see post, at 755 (dissent), Congress was justified in enacting the FMLA as remediallegislation.10Ann. §4-21-408(a) (1998); U. S. Dept. of Labor, Women's Bureau, State Maternity/Family Leave Law, p. 12 (June 1993) (citing a Virginia personnel policy).8 See 3 Colo. Code Regs. § 708-1, Rule 80.8 (2002); Kan. Admin. Regs. 21-32-6 (2003); N. H. Stat. Ann. § 354-A:7(VI)(b) (Michie Supp. 2000). Oklahoma offered only a system by which employees could voluntarily donate leave time for colleagues' family emergencies. Okla. Stat., Tit. 74, § 840-2.22 (historical note) (West 2002).9 See 3 Colo. Code Regs. § 708-1, Rule 80.8 (2002); Kan. Admin. Regs. 21-32-6 (2003); Wis. Admin. Code ch. DWD 225 (1997) (former ch. ILHR 225); State Maternity/Family Leave Law, supra, at 12 (Virginia).10 Contrary to the dissent's belief, we do not hold that Congress may "abrogat[e] state immunity from private suits whenever the State's social benefits program is not enshrined in the statutory code and provides employers with discretion," post, at 753, or when a State does not confer social benefits "as generous or extensive as Congress would later deem appropriate," post, at 752. The dissent misunderstands the purpose of the FMLA's family-leave provision. The FMLA is not a "substantive entitlement program," post, at 754; Congress did not create a particular leave policy for its own sake. See infra, at 737-738. Rather, Congress sought to adjust family-leave policies in order to eliminate their reliance on, and perpetuation of, invalid stereotypes, and thereby dismantle persisting gender-based barriers to the hiring, retention, and promotion of women in the workplace. In pursuing that goal, for the reasons discussed above,735In sum, the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic § 5 legislation.llWe reached the opposite conclusion in Garrett and Kimel.In those cases, the § 5 legislation under review responded to a purported tendency of state officials to make age- or disability-based distinctions. Under our equal protection case law, discrimination on the basis of such characteristics is not judged under a heightened review standard, and passes muster if there is "a rational basis for doing so at a classbased level, even if it 'is probably not true' that those reasons are valid in the majority of cases." Kimel, 528 U. S., at 86 (quoting Gregory v. Ashcroft, 501 U. S. 452, 473 (1991)). See also Garrett, 531 U. S., at 367 ("States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational"). Thus, in order to impugn the constitutionality of state discrimination against the disabled or the elderly, Congress must identify, not just the existence of ageor disability-based state decisions, but a "widespread pattern" of irrational reliance on such criteria. Kimel, supra, at 90. We found no such showing with respect to the ADEA and Title I of the Americans with Disabilities Act of 1990 (ADA). Kimel, supra, at 89; Garrett, supra, at 368.supra, at 733-734 and this page, Congress reasonably concluded that state leave laws and practices should be brought within the Act.11 Given the extent and specificity of the above record of unconstitutional state conduct, it is difficult to understand the dissent's accusation that we rely on "a simple recitation of a general history of employment discrimination against women." Post, at 746. As we stated above, our holding rests on congressional findings that, at the time the FMLA was enacted, States "rel[ied] on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits." Supra, at 730 (emphasis added). See supra, at 730-732.736Here, however, Congress directed its attention to state gender discrimination, which triggers a heightened level of scrutiny. See, e. g., Craig, 429 U. S., at 197-199. Because the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than our rational-basis test-it must "serv[e] important governmental objectives" and be "substantially related to the achievement of those objectives," Virginia, 518 U. S., at 533-it was easier for Congress to show a pattern of state constitutional violations. Congress was similarly successful in South Carolina v. Katzenbach, 383 U. S. 301, 308-313 (1966), where we upheld the Voting Rights Act of 1965: Because racial classifications are presumptively invalid, most of the States' acts of race discrimination violated the Fourteenth Amendment.The impact of the discrimination targeted by the FMLAis significant. Congress determined:"Historically, denial or curtailment of women's employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women's roles has in turn justified discrimination against women when they are mothers or mothers-tobe." Joint Hearing 100.Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.737We believe that Congress' chosen remedy, the family-care leave provision of the FMLA, is "congruent and proportional to the targeted violation," Garrett, supra, at 374. Congress had already tried unsuccessfully to address this problem through Title VII and the amendment of Title VII by the Pregnancy Discrimination Act, 42 U. S. C. § 2000e(k). Here, as in Katzenbach, supra, Congress again confronted a "difficult and intractable proble[m]," Kimel, supra, at 88, where previous legislative attempts had failed. See Katzenbach, supra, at 313 (upholding the Voting Rights Act). Such problems may justify added prophylactic measures in response. Kimel, supra, at 88.By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family care giving, thereby reducing employers' incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes.The dissent characterizes the FMLA as a "substantive entitlement program" rather than a remedial statute because it establishes a floor of 12 weeks' leave. Post, at 754. In the dissent's view, in the face of evidence of gender-based discrimination by the States in the provision of leave benefits, Congress could do no more in exercising its § 5 power than simply proscribe such discrimination. But this position cannot be squared with our recognition that Congress "is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment," but may prohibit "a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Kimel, supra, at 81. For example, this Court has738upheld certain prophylactic provisions of the Voting Rights Act as valid exercises of Congress' § 5 power, including the literacy test ban and preclearance requirements for changes in States' voting procedures. See, e. g., Katzenbach v. Morgan, 384 U. S. 641 (1966); Oregon v. Mitchell, 400 U. S. 112 (1970); South Carolina v. Katzenbach, supra.Indeed, in light of the evidence before Congress, a statute mirroring Title VII, that simply mandated gender equality in the administration of leave benefits, would not have achieved Congress' remedial object. Such a law would allow States to provide for no family leave at all. Where "[t]wothirds of the nonprofessional caregivers for older, chronically ill, or disabled persons are working women," H. R. Rep. No. 103-8, pt. 1, at 24; S. Rep. No. 103-3, at 7, and state practices continue to reinforce the stereotype of women as caregivers, such a policy would exclude far more women than men from the workplace.Unlike the statutes at issue in City of Boerne, Kimel, and Garrett, which applied broadly to every aspect of state employers' operations, the FMLA is narrowly targeted at the faultline between work and family-precisely where sexbased overgeneralization has been and remains strongestand affects only one aspect of the employment relationship. Compare Ragsdale v. Wolverine World Wide, Inc., 535 U. S. 81, 91 (2002) (discussing the "important limitations of the [FMLA's] remedial scheme"), with City of Boerne, 521 U. S., at 532 (the "[s]weeping coverage" of the Religious Freedom Restoration Act of 1993); Kimel, 528 U. S., at 91 ("the indiscriminate scope of the [ADEA's] substantive requirements"); and Garrett, 531 U. S., at 361 (the ADA prohibits disability discrimination "in regard to [any] terms, conditions, and privileges of employment" (internal quotation marks omitted)).We also find significant the many other limitations that Congress placed on the scope of this measure. See Florida Prepaid, 527 U. S., at 647 ("[W]here 'a congressional enact-739ment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under § 5'" (quoting City of Boerne, supra, at 532-533)). The FMLA requires only unpaid leave, 29 U. S. C. § 2612(a)(1), and applies only to employees who have worked for the employer for at least one year and provided 1,250 hours of service within the last 12 months, § 2611(2)(A). Employees in high-ranking or sensitive positions are simply ineligible for FMLA leave; of particular importance to the States, the FMLA expressly excludes from coverage state elected officials, their staffs, and appointed policymakers. §§ 2611(2)(B)(i) and (3), 203(e) (2)(C). Employees must give advance notice of foreseeable leave, § 2612(e), and employers may require certification by a health care provider of the need for leave, § 2613. In choosing 12 weeks as the appropriate leave floor, Congress chose "a middle ground, a period long enough to serve 'the needs of families' but not so long that it would upset 'the legitimate interests of employers.'" Ragsdale, supra, at 94 (quoting 29 U. S. C. §2601(b)).12 Moreover, the cause12 Congress established 12 weeks as a floor, thus leaving States free to provide their employees with more family-leave time if they so choose. See 29 U. S. C. §2651(b) ("Nothing in this Act or any amendment made by this Act shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act"). The dissent faults Congress for giving States this choice, arguing that the FMLA's terms do not bar States from granting more family-leave time to women than to men. Post, at 756. But JUSTICE KENNEDY effectively counters his own argument in his very next breath, recognizing that such gender-based discrimination would "run afoul of the Equal Protection Clause or Title VI!." Ibid. In crafting new legislation to remedy unconstitutional state conduct, Congress may certainly rely on and take account of existing laws. Indeed, Congress expressly did so here. See 29 U. S. C. §2651(a) ("Nothing in this Act or any amendment made by this Act shall be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of ... sex ... ").740740 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBSSTEVENS, J., concurring in judgmentof action under the FMLA is a restricted one: The damages recoverable are strictly defined and measured by actual monetary losses, §§ 2617(a)(1)(A)(i)-(iii), and the accrual period for backpay is limited by the Act's 2-year statute of limitations (extended to three years only for willful violations), §§ 2617(c)(1) and (2).For the above reasons, we conclude that § 2612(a)(1)(C) is congruent and proportional to its remedial object, and can "be understood as responsive to, or designed to prevent, unconstitutional behavior." City of Boerne, supra, at 532.The judgment of the Court of Appeals is thereforeAffirmed | OCTOBER TERM, 2002SyllabusNEVADA DEPARTMENT OF HUMAN RESOURCES ET AL. v. HIBBS ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 01-1368. Argued January 15, 2003-Decided May 27, 2003Respondent Hibbs (hereinafter respondent), an employee of the Nevada Department of Human Resources (Department), sought leave to care for his ailing wife under the Family and Medical Leave Act of 1993 (FMLA), which entitles an eligible employee to take up to 12 work weeks of unpaid leave annually for the onset of a "serious health condition" in the employee's spouse and for other reasons, 29 U. S. C. § 2612(a)(I)(C). The Department granted respondent's request for the full 12 weeks of FMLA leave, but eventually informed him that he had exhausted that leave and that he must report to work by a certain date. Respondent failed to do so and was terminated. Pursuant to FMLA provisions creating a private right of action to seek both equitable relief and money damages "against any employer (including a public agency)," § 2617(a)(2), that "interfere[d] with, restrain[ed], or den[ied] the exercise of" FMLA rights, § 2615(a)(I), respondent sued petitioners, the Department and two of its officers, in Federal District Court seeking damages and injunctive and declaratory relief for, inter alia, violations of § 2612(a)(I)(C). The court awarded petitioners summary judgment on the grounds that the FMLA claim was barred by the Eleventh Amendment and that respondent's Fourteenth Amendment rights had not been violated. The Ninth Circuit reversed.Held: State employees may recover money damages in federal court in the event of the State's failure to comply with the FMLA's family-care provision. Congress may abrogate the States' Eleventh Amendment immunity from suit in federal court if it makes its intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment. See, e. g., Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 363. The FMLA satisfies the clear statement rule. See Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73-78. Congress also acted within its authority under § 5 of the Fourteenth Amendment when it sought to abrogate the States' immunity for purposes of the FMLA's family-leave provision. In the exercise of its § 5 power, Congress may enact socalled prophylactic legislation that proscribes facially constitutional con-722duct in order to prevent and deter unconstitutional conduct, e. g., City of Boerne v. Flores, 521 U. S. 507, 536, but it may not attempt to substantively redefine the States' legal obligations, Kimel, supra, at 88. The test for distinguishing appropriate prophylactic legislation from substantive redefinition is that valid § 5 legislation must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne, supra, at 520. The FMLA aims to protect the right to be free from gender-based discrimination in the workplace. Statutory classifications that distinguish between males and females are subject to heightened scrutiny, see, e. g., Craig v. Boren, 429 U. S. 190, 197-199; i. e., they must "serv[e] important governmental objectives," and "the discriminatory means employed [must be] substantially related to the achievement of those objectives," United States v. Virginia, 518 U. S. 515, 533. When it enacted the FMLA, Congress had before it significant evidence of a long and extensive history of sex discrimination with respect to the administration of leave benefits by the States, which is weighty enough to justify the enactment of prophylactic § 5 legislation. Cf. Fitzpatrick v. Bitzer, 427 U. S. 445, 456. Garrett, supra, and Kimel, supra, in which the Court reached the opposite conclusion, are distinguished on the ground that the § 5 legislation there at issue responded to a purported tendency of state officials to make age- or disability-based distinctions, characteristics that are not judged under a heightened review standard, but pass equal protection muster if there is a rational basis for enacting them. See, e. g., Kimel, supra, at 86. Here, because the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than the rational-basis test, it was easier for Congress to show a pattern of state constitutional violations. Cf. South Carolina v. Katzenbach, 383 U. S. 301, 308-313. The impact of the discrimination targeted by the FMLA, which is based on mutually reinforcing stereotypes that only women are responsible for family caregiving and that men lack domestic responsibilities, is significant. Moreover, Congress' chosen remedy, the FMLA's family-care provision, is "congruent and proportional to the targeted violation," Garrett, supra, at 374. Congress had already tried unsuccessfully to address this problem through Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act. Where previous legislative attempts have failed, see Katzenbach, supra, at 313, such problems may justify added prophylactic measures in response, Kimel, supra, at 88. By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female723Full Text of Opinion |
370 | 1978_78-752 | STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 443 U. S. 149.MR. JUSTICE REHNQUIST delivered the opinion of the Court.Last Term, in Procunier v. Navarette, 434 U. S. 555 (1978), we granted certiorari to consider the question whether negligent conduct can form the basis of an award of damages under 42 U.S.C. § 1983. The constitutional violation alleged in Procunier was interference on the part of prison officials with a prisoner's outgoing mail. The complaint alleged that the prison officials had acted with every conceivable state of mind, from "knowingly" and in "bad faith" to "negligently and inadvertently." We granted certiorari, however, only on the question "[w]hether negligent failure to mail certain of Page 443 U. S. 139 a prisoner's outgoing letters states a cause of action under § 1983." 434 U.S. at 434 U. S. 559 n. 6.Following oral argument and briefing on the merits, the Court held that, since the constitutional right allegedly violated had not been authoritatively declared at the time the prison officials acted, the officials were entitled, as a matter of law, to prevail on their claim of qualified immunity. Quoting from Wood v. Strickland, 420 U. S. 308, 420 U. S. 322 (1975), we observed:"Because [the prison officials] could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, [they] did not act with such disregard for the established law that their conduct 'cannot reasonably be characterized as being in good faith.'"434 U.S. at 434 U. S. 565. It was thus unnecessary to reach the question on which certiorari had been granted.In the instant case, the Court of Appeals for the Fifth Circuit saw the focal issue as whether petitioner Baker, the sheriff of Potter County, Tex., had negligently failed to establish certain identification procedures which would have revealed that respondent was not the man wanted in connection with the drug charges on which he was arrested. Accordingly, it withheld decision until our opinion in Procunier was handed down. Finding no guidance in Procunier on the question whether an allegation of "simple negligence" states a claim for relief under § 1983, the Court of Appeals proceeded to answer that question affirmatively, holding that respondent was entitled to have his § 1983 claim presented to the jury even though the evidence supported no more than a finding of negligence on the part of Sheriff Baker. We granted certiorari. 439 U.S. 1114 (1979).Having been around this track once before in Procunier, supra, we have come to the conclusion that the question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform Page 443 U. S. 140 answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action. In any event, before the relationship between the defendant's state of mind and his liability under § 1983 can be meaningfully explored, it is necessary to isolate the precise constitutional violation with which he is charged. For § 1983 imposes civil liability only upon one"who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. . . ."The first inquiry in any 1983 suit, therefore, is whether the plaintiff has been deprived of a right "secured by the Constitution and laws." If there has been no such deprivation, the state of mind of the defendant is wholly immaterial. [Footnote 1] We think that respondent has failed to satisfy this threshold requirement of § 1983, and thus defer once again consideration of the question whether simple negligence can give rise to § 1983 liability.ILeonard McCollan and respondent Linnie Carl McCollan are brothers. Leonard somehow procured a duplicate of Linnie's driver's license, identical to the original in every respect except that, as the Court of Appeals put it, "Leonard's picture graced it instead of Linnie's." McCollan v. Tate, 575 F.2d 509, 511 (CA5 1978). In October, 1972, Leonard, masquerading as Linnie, was arrested in Potter County on narcotics Page 443 U. S. 141 charges. He was booked as Linnie Carl McCollan, signed various documents as Linnie Carl McCollan, and was released on bail as Linnie Carl McCollan. Leonard's bondsman sought and received an order allowing him to surrender his principal and a warrant was issued for the arrest of "Linnie Carl McCollan."On December 26, 1972, Linnie was stopped in Dallas for running a red light. A routine warrant check revealed that Linnie Carl McCollan was wanted in Potter County, and respondent was taken into custody over his protests of mistaken identification. The Dallas Police Department contacted the Potter County Sheriff's Department, compared the identifying information on respondent's driver's license with that contained in the Potter County arrest records, and understandably concluded that they had their man. On December 30, Potter County deputies took custody of respondent and placed him in the Potter County Jail in Amarillo. He remained there until January 2, 1973, when officials compared his appearance against a file photograph of the wanted man and, recognizing their error, released him.Respondent brought this damages action "pursuant to the Fourteenth Amendment to the United States Constitution and . . . [§] 1983." App. 6. After each party had rested his case, the United States District Court for the Northern District of Texas directed a verdict in favor of Sheriff Baker and his surety, Transamerica Insurance Co., without articulating its reasons. The Court of Appeals for the Fifth Circuit reversed. Characterizing respondent's cause of action as a " [§] 1983 false imprisonment action," the Court of Appeals determined that respondent had made out a prima facie case by showing (1) intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. The question in the court's view thus became whether Sheriff Baker was entitled to the defense of qualified immunity, which, in turn, depended on the reasonableness Page 443 U. S. 142 of his failure to institute an identification procedure that would have disclosed the error. Noting that the error would have been discovered if Potter County officials had sent identifying material to Dallas or had, immediately upon respondent's arrival in Amarillo, compared him with the file photograph and fingerprints of the wanted man, the Court of Appeals determined that a jury could reasonably conclude that the sheriff had behaved unreasonably in failing to institute such measures. Accordingly, the case was remanded to the District Court for a new trial.IIRespondent's claim is that his detention in the Potter County jail was wrongful. Under a tort law analysis, it may well have been. The question here, however, is whether his detention was unconstitutional. For, as the Court of Appeals recognized, a public official is liable under § 1983 only "if he causes the plaintiff to be subjected to deprivation of his constitutional rights." 575 F.2d at 512 (emphasis in original). Despite this recognition, the Court of Appeals analyzed respondent's so-called "[§] 1983 false imprisonment action" exclusively in terms of traditional tort law concepts, relying heavily on the Restatement (Second) of Torts (1965). Indeed, nowhere in its opinion does the Court of Appeals specifically identify the constitutional right allegedly infringed in this case. Because respondent's claim and the Court of Appeals' decision focus exclusively on respondent's prolonged detention caused by petitioner's failure to institute adequate identification procedures, the constitutional provision allegedly violated by petitioner's action is presumably the Fourteenth Amendment's protection against deprivations of liberty without due process of law.By virtue of its "incorporation" into the Fourteenth Amendment, the Fourth Amendment requires the States to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty. Gerstein Page 443 U. S. 143 v. Pugh, 420 U. S. 103 (1975). The probable cause determination "must be made by a judicial officer either before or promptly after arrest." Id. at 420 U. S. 125. Since an adversary hearing is not required, and since the probable cause standard for pretrial detention is the same as that for arrest, a person arrested pursuant to a warrant issued by a magistrate on a showing of probable cause is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial. [Footnote 2]In this case, respondent was arrested pursuant to a facially valid warrant, and the Court of Appeals made no suggestion that respondent's arrest was constitutionally deficient. Indeed, respondent makes clear that his § 1983 claim was based solely on Sheriff Baker's actions after respondent was incarcerated:"McCollan's 1983 claim against the sheriff is not for the wrong name being placed in the warrant or the failure to discover and change same, or even the initial arrest of the respondent, but rather for the intentional failure to investigate and determine that the wrong man was imprisoned."Brief for Respondent 12.For purposes of analysis, then, this case can be parsed with relative ease. Absent an attack on the validity of the warrant under which he was arrested, respondent's complaint is Page 443 U. S. 144 simply that, despite his protests of mistaken identity, he was detained in the Potter County jail from December 30, when Potter County deputies retrieved him from Dallas, until January 2, when the validity of his protests was ascertained. Whatever claims this situation might give rise to under state tort law, we think it gives rise to no claim under the United States Constitution. Respondent was indeed deprived of his liberty for a period of days, but it was pursuant to a warrant conforming, for purposes of our decision, to the requirements of the Fourth Amendment. Obviously, one in respondent's position could not be detained indefinitely in the face of repeated protests of innocence, even though the warrant under which he was arrested and detained met the standards of the Fourth Amendment. For the Constitution likewise guarantees an accused the right to a speedy trial, and invocation of the speedy trial right need not await indictment or other formal charge; arrest pursuant to probable cause is itself sufficient. United States v. Marion, 404 U. S. 307 (1971). [Footnote 3] Page 443 U. S. 145 We may even assume, arguendo, that, depending on what procedures the State affords defendants following arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will, after the lapse of a certain amount of time, deprive the accused of "liberty . . . without due process of law." But we are quite certain that a detention of three days over a New Year's weekend does not, and could not, amount to such a deprivation.Respondent's innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment in most if not all jurisdictions, is largely irrelevant to his claim of deprivation of liberty without due process of law. [Footnote 4] The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted -- indeed, for every suspect released. Nor are the manifold procedural protections afforded criminal defendants under the Bill of Rights "without limits." Patterson v. New York, 432 U. S. 197, 432 U. S. 28 (1977)."Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person."Ibid.The Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished "without due process of law." A reasonable division of functions between law enforcement officers, committing magistrates, and judicial officers -- all of whom may be potential defendants in a § 1983 action -- is entirely consistent with "due process of law." Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution Page 443 U. S. 146 to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim. The ultimate determination of such claims of innocence is placed in the hands of the judge and the jury. [Footnote 5]IIIThe Court of Appeals closed its opinion with the following summary of its holding:"We are saying that the sheriff or arresting officer has a duty to exercise due diligence in making sure that the person arrested and detained is actually the person sought under the warrant, and not merely someone of the same or a similar name. See Restatement (2d) Torts § 125, comment (d) (1965)."575 F.2d at 513. Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort law principles. Just as "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner," Estelle v. Gamble, 429 U. S. 97, 429 U. S. 106 (1976), false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official.Having been deprived of no rights secured under the United States Constitution, respondent had no claim cognizable under Page 443 U. S. 147 § 1983. The judgment of the Court of Appeals for the Fifth Circuit is thereforeReversed | U.S. Supreme CourtBaker v. MCollan, 443 U.S. 137 (1979)Baker v. MCollanNo. 78-752Argued April 23, 1979Decided June 26, 1979443 U.S. 137SyllabusRespondent's brother somehow procured a duplicate of respondent's driver's license, except that it bore the brother's picture. The brother was arrested on narcotics charges, booked in respondent's name, and released on bond. An arrest warrant intended for the brother was subsequently issued in respondent's name. Pursuant to that warrant, respondent, over his protest, was taken into custody by the Potter County, Tex., Sheriff's Department and detained in jail for several days before the error was discovered and he was released. Claiming that his detention in jail had deprived him of liberty without due process of law, respondent brought an action in District Court against petitioner sheriff of Potter County and his surety under 42 U.S.C. § 1983, which imposes civil liability on any person who, under color of state law, subjects another to the deprivation of rights "secured by the Constitution and laws." The District Court directed a verdict in favor of petitioner and his surety. The Court of Appeals, characterizing respondent's cause of action as a "[§] 1983 false imprisonment action," reversed, holding that respondent was entitled to have his § 1983 claim presented to the jury even though the evidence supported no more than a finding of negligence on petitioner's part.Held: Respondent failed to satisfy § 1983's threshold requirement that the plaintiff be deprived of a right "secured by the Constitution and laws," and hence had no claim cognizable under § 1983. Pp. 443 U. S. 142-147.(a) Absent an attack on the validity of the warrant under which he was arrested, respondent's complaint is simply that, despite his protests of mistaken identity, he was detained in jail for three days. Whatever claim this situation might give rise to under state tort law, it gives rise to no claim under the Fourteenth Amendment to the United States Constitution. While respondent was deprived of his liberty for three days, it was pursuant to a warrant conforming to the requirements of the Fourth Amendment. His detention, therefore, did not amount to a deprivation of liberty without due process of law. Pp. 443 U. S. 142-145.(b) Respondent's innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment, is largely irrelevant to his claim of deprivation of liberty without due process of law. Page 443 U. S. 138 Given the requirements that an arrest be made only on probable cause and that one detained be accorded a speedy trial, a sheriff executing a valid arrest warrant is not required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official maintaining custody of the person named in the warrant required by the Constitution to perform an error-free investigation of such a claim. Pp. 443 U. S. 145-146.(c) The tort of false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official. P. 443 U. S. 146.575 F.2d 509, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 443 U. S. 147. MARSHALL, J., filed a dissenting opinion, post, p. 443 U. S. 149. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 443 U. S. 149. |
371 | 1980_80-590 | JUSTICE POWELL delivered the opinion of the Court.This case requires us to determine whether federal courts have exclusive jurisdiction over personal injury and indemnity cases arising under the Outer Continental Shelf Lands Act, 67 Stat. 462, as amended, 43 U.S.C. § 1331 et seq. (1976 ed. and Supp. III). We also consider whether the rule of Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490 (1980), that the jury be instructed that personal injury damages awards are not subject to federal income taxation, is applicable to such a case.IRespondent, Mobil Oil Corp., contracted with petitioner, Gulf Offshore Co., for the latter to perform certain completion operations on oil drilling platforms offshore of Louisiana. As part of the agreement, petitioner promised to indemnify Mobil for all claims resulting directly or indirectly from the work. While the work was in progress in September, 1975, the advent of Hurricane Eloise required that workers be evacuated from oil platforms in the Gulf of Mexico.Steven Gaedecke was an employee of petitioner working on an oil drilling platform above the seabed of the Outer Continental Shelf. As the storm approached, a boat chartered Page 453 U. S. 476 by Mobil took him safely aboard. Shortly thereafter, while assisting crewmen attempting to evacuate other workers from the platforms in turbulent sea, he was washed across the deck of the vessel by a wave. He suffered injuries, primarily to his back.Gaedecke brought this suit for damages in the District Court of Harris County, a Texas state court alleging negligence by Mobil and the boat owner. Mobil filed a third-party complaint for indemnification against petitioner. [Footnote 1] In its third-party answer, petitioner denied that the state court had subject matter jurisdiction over the third-party complaint. Petitioner argued that Mobil's cause of action arose under the Outer Continental Shelf Lands Act (OCSLA), and that OCSLA vested exclusive subject matter jurisdiction in a United States district court. The Texas trial court rejected this contention, and the case went to trial before a jury.In submitting the case to the jury, the trial court denied a request by petitioner to instruct them that personal injury damages awards are not subject to federal income taxation and that they should not increase or decrease an award in contemplation of tax consequences. The jury found Mobil negligent and awarded Gaedecke $900,000 for his injuries. The jury also found, however, that Gaedecke sustained his injuries while performing work subject to the contract of indemnification. Based on the two verdicts, the trial judge entered judgment against petitioner in the amount of $900,000.The Texas Court of Civil Appeals affirmed. 594 S.W.2d 496 (1979). It held that the Texas state courts had subject Page 453 U. S. 477 matter jurisdiction over the causes of action. [Footnote 2] It acknowledged that OCSLA governed the case, but found no explicit command in the Act that federal court jurisdiction be exclusive. The court also observed that exclusive federal court jurisdiction was unnecessary, because the Act incorporates as federal law in personal injury actions the laws of the State adjacent to the scene of the events, when not inconsistent with other federal laws. 43 U.S.C. § 1333(a)(2). Thus, the court reasoned, "[t]he end result would be an application of the same laws no matter where the forum was located, whether state or federal." 594 S.W.2d at 502. The court also held that the trial court did not err in refusing to instruct the jury that damages awards are not subject to federal income taxation. The Texas Supreme Court denied review.We granted certiorari to resolve a conflict over whether federal courts have exclusive subject matter jurisdiction over suits arising under OCSLA [Footnote 3] and to consider whether an instruction that damages are not taxable is appropriate in such a case. 449 U.S. 1033 (1980).IIAThe general principle of state court jurisdiction over cases arising under federal laws is straightforward: state courts may assume subject matter jurisdiction over a federal cause of action absent provision by Congress to the contrary or disabling incompatibility between the federal claim and state Page 453 U. S. 478 court adjudication. Charles Dowd Box Co. v. Courtney, 368 U. S. 502, 368 U. S. 507-508 (1962); Claflin v. Houseman, 93 U. S. 130, 93 U. S. 136 (1876). This rule is premised on the relation between the States and the National Government within our federal system, see The Federalist No. 82 (Hamilton). The two exercise concurrent sovereignty, although the Constitution limits the powers of each and requires the States to recognize federal law as paramount. Federal law confers rights binding on state courts, the subject matter jurisdiction of which is governed in the first instance by state laws. [Footnote 4]In considering the propriety of state court jurisdiction over any particular federal claim, the Court begins with the presumption that state courts enjoy concurrent jurisdiction. See California v. Arizona, 440 U. S. 59, 440 U. S. 66-67 (1979); Charles Dowd Box Co. v. Courtney, 368 U.S. at 368 U. S. 507-508. Congress, however, may confine jurisdiction to the federal courts either explicitly or implicitly. Thus, the presumption of concurrent jurisdiction can be rebutted by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state court jurisdiction and federal interests. See ibid.; Claflin, supra, at 93 U. S. 137. See also Garner v. Teamsters, 346 U. S. 485 (1953) (grievance within jurisdiction of National Labor Relations Board to prevent unfair labor practice not subject to relief by injunction in state court).BNo one argues that Congress explicitly granted federal courts exclusive jurisdiction over cases arising under OCSLA. Congress did grant United States district courts "original Page 453 U. S. 479 jurisdiction of cases and controversies arising out of or in connection with any operations conducted on the outer Continental Shelf. . . ." 43 U.S.C. § 1333(b). [Footnote 5] It is black letter law, however, that the mere grant of jurisdiction to a federal court does not operate to oust a state court from concurrent jurisdiction over the cause of action. [Footnote 6] United States v. Bank of New York & Trust Co., 296 U. S. 463, 296 U. S. 479 (1936).OCSLA declares the Outer Continental Shelf to be an area of "exclusive federal jurisdiction." 43 U.S.C. 1333(a)(1). Chevron Oil Co. v. Huson, 404 U. S. 97, 404 U. S. 100 (1971). [Footnote 7] Page 453 U. S. 480 Petitioner does contend that the assertion of exclusive political jurisdiction over the Shelf evinces a congressional intent that federal courts exercise exclusive jurisdiction over controversies arising from operations on the Shelf. See Fluor Ocean Services, Inc. v. Rucker Co., 341 F. Supp. 757, 760 (ED La.1972). This argument is premised on a perceived incompatibility between exclusive federal sovereignty over the Outer Continental Shelf and state court jurisdiction over controversies relating to the Shelf. We think petitioner mistakes the purpose of OCSLA and the policies necessitating exclusive federal court jurisdiction.OCSLA extends the "Constitution and laws and civil and political jurisdiction of the United States" to the subsoil and seabed of the Outer Continental Shelf and to "artificial islands and fixed structures" built for discovery, extraction, and transportation of minerals. 43 U.S.C. § 1333(a)(1). All law applicable to the Outer Continental Shelf is federal law, but to fill the substantial "gaps" in the coverage of federal law, OCSLA borrows the "applicable and not inconsistent" laws of the adjacent States as surrogate federal law. Page 453 U. S. 481 § 1333(a)(2); Rodrigue v. Aetna Casualty Co., 395 U. S. 352, 395 U. S. 355-359 (1969). Thus, a personal injury action involving events occurring on the Shelf is governed by federal law, the content of which is borrowed from the law of the adjacent State, here, Louisiana. See id. at 395 U. S. 362-365. Cf. United States v. Kimbell Foods, Inc., 440 U. S. 715 (1979) (state law incorporated as federal common law concerning priority of liens created by federal law).The OCSLA plan is not inimical to state court jurisdiction over personal injury actions. Nothing inherent in exclusive federal sovereignty over a territory precludes a state court from entertaining a personal injury suit concerning events occurring in the territory and governed by federal law. Ohio River Contract Co. v. Gordon, 244 U. S. 68 (1917). See 16 U.S.C. § 457 (personal injury and wrongful death actions involving events occurring "within a national park or other place subject to the exclusive jurisdiction of the United States, within the exterior boundaries of any State" shall be maintained as if the place were under the jurisdiction of the State). Cf. Evans v. Cornman, 398 U. S. 419, 398 U. S. 424 (1970) (residents of an area of exclusive federal jurisdiction within a State are "subject to the process and jurisdiction of state courts")."The judiciary power of every government looks beyond its own local or municipal laws, and, in civil cases, lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe."The Federalist No. 82, p. 514 (H. Lodge ed.1908) (Hamilton), quoted in Claflin v. Houseman, 93 U.S. at 93 U. S. 138. State courts routinely exercise subject matter jurisdiction over civil cases arising from events in other States and governed by the other States' laws. See, e.g., Dennick v. Railroad Co., 103 U. S. 11 (1881). Cf. Allstate Ins. Co. v. Hague, 449 U. S. 302 (1981). That the location of the event giving rise to the suit is an area of exclusive federal jurisdiction, rather than another State, does not introduce any new limitation on the forum State's subject Page 453 U. S. 482 matter jurisdiction. [Footnote 8] Ohio River Contract Co. v. Gordon, supra, at 244 U. S. 72.Section 1333(a)(3) provides that"adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf, or the property and natural resources thereof or the revenues therefrom."Petitioner argues that state court jurisdiction over this personal injury case would contravene this provision. This argument again confuses the political jurisdiction of a State with its judicial jurisdiction. Section 1333(a)(3) speaks to the geographic boundaries of state sovereignty, because Congress primarily was concerned in enacting OCSLA to assure federal control over the Shelf and its resources. See n 7, supra. The language of the provision refers to "any interest in or jurisdiction over" real property, minerals, and revenues, not over causes of action. Indeed, opponents of OCSLA urged Congress to extend the political boundaries of the States seaward over the Shelf, at least for some purposes. See 99 Cong.Rec. 7230 (remarks of Sen. Ellender), 7232 (remark of Sen. Long) (1953). The Senate Report explains that § 1333(a)(3) was intended to make plain that the adoption of state law as federal law cannot be the basis for a claim by the State "for participation in the administration of or revenues from the areas outside of State boundaries." 1953 S.Rep. at 23.We do not think the legislative history of OCSLA can be read to rebut the presumption of concurrent state court jurisdiction, given Congress' silence on the subject in the statute Page 453 U. S. 483 itself. Petitioner relies principally on criticisms by the two Senators from Louisiana, Ellender and Long, who opposed the bill that eventually became OCSLA. [Footnote 9] Yet "[t]he fears and doubts of the opposition are no authoritative guide to the construction of legislation." Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 341 U. S. 394 (1951). [Footnote 10] Moreover, the amendments offered by the Senators sought to confer political control over the Shelf and its mineral wealth on the States, not jurisdiction on the state courts over OCSLA cases. See 9 Cong.Rec. 7230 (Sen. Ellender), 7232 (Sen. Long) (1953). [Footnote 11]CThe operation of OCSLA will not be frustrated by state court jurisdiction over personal injury actions. The factors generally recommending exclusive federal court jurisdiction over an area of federal law include [Footnote 12] the desirability of uniform Page 453 U. S. 484 interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims. [Footnote 13] These factors cannot support exclusive federal jurisdiction over claims whose governing rules are borrowed from state law. There is no need for uniform interpretation of laws that vary from State to State. State judges have greater expertise in applying these laws and certainly cannot be thought unsympathetic to a claim only because it is labeled federal, rather than state, law.Allowing personal injury and contract actions in state courts will advance interests identified by Congress in enacting OCSLA. A recurring consideration in the deliberations leading to enactment was"the special relationship between the men working on these [platforms] and the adjacent shore to which they commute to visit their families."Rodrigue v. Aetna Casualty Co., 395 U.S. at 395 U. S. 365. Allowing state court jurisdiction over these cases will allow these workers, and their lawyers, to pursue individual claims in familiar, convenient, and possibly less expensive fora. See Chevron Oil Co. v. Huson, 404 U.S. at 404 U. S. 103 (state statute of limitations applies to personal injury actions arising under OCSLA).In summary, nothing in the language, structure, legislative history, or underlying policies of OCSLA suggests that Congress intended federal courts to exercise exclusive jurisdiction over personal injury actions arising under OCSLA. The Texas courts had jurisdiction over this case.IIIThe Court of Civil Appeals held that petitioner was not entitled to an instruction cautioning the jury that personal Page 453 U. S. 485 injury damages awards are not subject to federal income taxation, § 104(a)(2) of the Internal Revenue Code of 1954, 26 U.S.C. § 104(a)(2). In so ruling, the court relied on Johnson v. Penrod Drilling Co., 510 F.2d 234, 236-237 (CA5) (en banc) (per curiam), cert. denied, 423 U.S. 839 (1975), a Jones Act case where the Court of Appeals prohibited presenting evidence or instructing the jury as to the impact of taxes on damages awards based on lost wages. This Court subsequently held that a defendant in a suit brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., is entitled to an instruction that damages for lost future wages are not subject to federal income taxation. Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490 (1980). [Footnote 14] Petitioner now argues that Liepelt applies to an OCSLA personal injury action, and that this case should be remanded for a new trial on damages before a properly instructed jury. [Footnote 15]Our first task is to determine the source of law that will govern whether such an instruction must be available in an OCSLA case. OCSLA, as discussed above, mandates that state laws apply as federal laws "[t]o the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws." 43 U.S.C. § 1333(a)(2). In any particular case, the adjacent State's law applies to those Page 453 U. S. 486 areas "which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf. . . ." Ibid. The statute thus contains a explicit choice of law provision. See n 8, supra. The parties agree that the substantive law of Louisiana applies to this case unless it is inconsistent with federal law.To apply the statutory directive, a court must consider the content of both potentially applicable federal and state law. Subsequent to the decision of the Texas court, as noted above, we held in Liepelt, supra, that a defendant in an FELA case is entitled to an instruction that damages awards are not subject to federal income taxation. [Footnote 16] As FELA afforded no guidance on this issue, the holding articulated a federal common law rule. The purpose was to eliminate from the deliberations Page 453 U. S. 487 of juries "an area of doubt or speculation that might have an improper impact on the computation of the amount of damages." 444 U.S. at 444 U. S. 498. [Footnote 17] Thus, the instruction furthers strong federal policies of fairness and efficiency in litigation of federal claims. If Congress had been silent about the source of federal law in an OCSLA personal injury case, Liepelt would require that the instruction be given.But Congress was not silent. It incorporated for this case the applicable law of Louisiana, but only "[t]o the extent [it is] not inconsistent" with federal law. The statute does not distinguish between federal statutory and judge-made law. It would seem then that, if Louisiana law is "inconsistent," Liepelt controls. Doubt arises, however, because, in OCSLA, Congress borrowed a remedy provided by state law, and thereby "specifically rejected national uniformity" as a paramount goal. Chevron Oil v. Huson, 404 U.S. at 404 U. S. 104. In Chevron, we held that Louisiana, rather than federal, common law provided the federal statute of limitations for personal injury damages actions under OCSLA. We recognized that"Congress made clear provision for filling the 'gaps' in Page 453 U. S. 488 federal law; it did not intend that federal courts fill those 'gaps' themselves by creating new federal common law."Id. at 404 U. S. 104-105. In this case, we face an analogous question: does the incorporation of state law preclude a court from finding that state law is "inconsistent" with a federal common law rule generally applicable to federal damages actions?We need answer this question only if Louisiana law would not require that the instruction be given upon timely request. The court below never addressed this question, [Footnote 18] but relied solely on federal case law now superseded. Under these circumstances, it is the better practice to remand this case to the Texas Court of Civil Appeals for a determination of whether Louisiana law requires the instruction, and, if it does not, whether Liepelt displaces the state rule in an OCSLA case. If the court decides that it was error to refuse the instruction, it may then address respondents' argument that petitioner was not prejudiced by the error.Affirmed | U.S. Supreme CourtGulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981)Gulf Offshore Co. v. Mobil Oil Corp.No. 80-590Argued March 31, 1981Decided July 1, 1981453 U.S. 473SyllabusRespondent Mobil Oil Corp. contracted with petitioner for the latter's performance of certain operations on offshore oil drilling platforms. Under the agreement, petitioner promised to indemnify Mobil for all claims resulting directly or indirectly from the work. One of petitioner's employees (also a respondent), working on an oil drilling platform above the seabed of the Outer Continental Shelf, was injured while, because of a storm, he was being evacuated from the platform aboard a boat chartered by Mobil. The employee brought suit for damages in a Texas state court, alleging negligence by Mobil and the boat owner. Mobil filed a third-party complaint for indemnification against petitioner. The trial court rejected petitioner's contention that the court lacked subject matter jurisdiction over the third-party complaint because Mobil's cause of action arose under the Outer Continental Shelf Lands Act (OCSLA), which vested exclusive subject matter jurisdiction in a federal district court. During the trial, the court denied petitioner's request to instruct the jury that personal injury damages awards are not subject to federal income taxation and that they should not increase or decrease an award in contemplation of tax consequences. The jury found Mobil negligent and awarded the employee $900,000 for his injuries. It also found that the employee sustained his injuries while performing work subject to the contract of indemnification. The court then entered judgment against petitioner in the amount of $900,000. The Texas Court of Civil Appeals affirmed, and the Texas Supreme Court denied review.Held:1. Federal courts do not have exclusive jurisdiction over personal injury and indemnity cases arising under OCSLA. Nothing in the language, structure, legislative history, or underlying policies of OCSLA suggests that Congress intended federal courts to exercise exclusive jurisdiction over such actions. Pp. 453 U. S. 477-484.(a) As a general principle, state courts may assume subject matter jurisdiction over a federal cause of action absent provision by Congress to the contrary or disabling incompatibility between the federal claim and state court adjudication. Pp. 453 U. S. 477-478. Page 453 U. S. 474(b) Congress did not explicitly grant federal courts exclusive jurisdiction over cases arising under OCSLA. And the OCSLA plan -- declaring the Outer Continental Shelf to be an area of "exclusive federal jurisdiction" and adopting "applicable and not inconsistent" law of the adjacent States to fill the substantial "gaps" in the coverage of federal law -- is not inimical to state court jurisdiction over personal injury actions. Nothing inherent in exclusive federal sovereignty or political jurisdiction over a territory precludes a state court from entertaining a suit concerning events occurring in the territory and governed by federal law. Nor can OCSLA's legislative history be read to rebut the presumption of concurrent state court jurisdiction, given Congress' silence on the subject in the statute itself. Pp. 453 U. S. 478-483.(c) The operation of OCSLA, which borrows state law to govern claims arising under it, will not be frustrated by state court jurisdiction over personal injury actions. And allowing personal injury and contract actions in state courts will advance interests identified by Congress in enacting OCSLA concerning the special relationship between the men working on offshore platforms and the adjacent shore to which they commute to visit their families. Pp. 453 U. S. 483-484.2. Whether petitioner was entitled to an instruction cautioning the jury that personal injury damages awards are not subject to federal income taxation depends on matters that were not addressed by the court below, and that should be initially considered by it on remand of the case. Subsequent to the Texas Court of Civil Appeals' determination that petitioner was not entitled to such an instruction under then-current federal case law, this Court decided Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490. In that case, an action under the Federal Employers' Liability Act, this Court, in the absence of any guidance in the statute, articulated a federal common law rule that a defendant in a federal personal injury action is entitled to an instruction that damages awards are not subject to federal income taxation. However, OCSLA mandates that the law of the adjacent State (Louisiana here) applies as federal law "[t]o the extent [it is] not inconsistent" with federal law. The question whether this incorporation of state law precludes a court from finding that state law is "inconsistent" with the federal common law rule announced in Liepelt need be answered here only if Louisiana law would not require that the damages instruction be given upon timely request. Thus, the case is remanded to the Court of Civil Appeals to determine whether Louisiana law requires the instruction, and, if it does not, whether Liepelt displaces the state rule in an OCSLA case. Pp. 453 U. S. 484-488.594 S.W.2d 496, affirmed in part, vacated in part, and remanded. Page 453 U. S. 475POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and STEVENS, JJ., joined, and in Parts I and II of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the result, in which BRENNAN and MARSHALL, JJ., joined, post, p. 453 U. S. 488. STEWART, J., took no part in the consideration or decision of the case. |
372 | 1984_83-1708 | JUSTICE MARSHALL delivered the opinion of the Court.The question presented is whether, when a complaint raises both federal securities claims and pendent state claims, a Federal District Court may deny a motion to compel arbitration of the state law claims despite the parties' agreement to arbitrate their disputes. We granted certiorari to resolve a conflict among the Federal Courts of Appeals on this question. 467 U.S. 1240 (1984).IIn 1981, A. Lamar Byrd sold his dental practice and invested $160,000 in securities through Dean Witter Reynolds Inc., a securities broker-dealer. The value of the account declined by more than $100,000 between September, 1981, and March, 1982. Byrd filed a complaint against Dean Witter in the United States District Court for the Southern District of California, alleging a violation of §§ 10(b), 15(c), and 20 of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78o(c), and 78t, and of various state law provisions. Federal jurisdiction over the state law claims was based on diversity of citizenship and the principle of pendent jurisdiction. In the complaint, Byrd alleged that an agent of Dean Witter had traded in his account without his prior consent, that the number of transactions executed on behalf of the account was excessive, that misrepresentations were made by an agent of Dean Witter as to the status of the account, and that the agent acted with Dean Witter's knowledge, participation, and ratification. Page 470 U. S. 215When Byrd invested his funds with Dean Witter in 1981, he signed a Customer's Agreement providing that"[a]ny controversy between you and the undersigned arising out of or relating to this contract or the breach thereof, shall be settled by arbitration."App. to Pet. for Cert. 11. Dean Witter accordingly filed a motion for an order severing the pendent state claims, compelling their arbitration, and staying arbitration of those claims pending resolution of the federal court action. App. 12. It argued that the Federal Arbitration Act (Arbitration Act or Act), 9 U.S.C. §§ 1-14, which provides that arbitration agreements"shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,"§ 2, required that the District Court compel arbitration of the state law claims. The Act authorizes parties to an arbitration agreement to petition a federal district court for an order compelling arbitration of any issue referable to arbitration under the agreement. §§ 3, 4. Because Dean Witter assumed that the federal securities claim was not subject to the arbitration provision of the contract and could be resolved only in the federal forum, it did not seek to compel arbitration of that claim. [Footnote 1] The District Court denied in its Page 470 U. S. 216 entirety the motion to sever and compel arbitration of the pendent state claims, and on an interlocutory appeal the Court of Appeals for the Ninth Circuit affirmed. 726 F.2d 552 (1984).IIConfronted with the issue we address [Footnote 2] -- whether to compel arbitration of pendent state law claims when the federal court will, in any event, assert jurisdiction over a federal law claim -- the Federal Courts of Appeals have adopted two different approaches. Along with the Ninth Circuit in this case, the Fifth and Eleventh Circuits have relied on the "doctrine of intertwining." When arbitrable and nonarbitrable claims arise out of the same transaction, and are sufficiently intertwined factually and legally, the district court, under this view, may in its discretion deny arbitration as to the arbitrable claims and try all the claims together in federal Page 470 U. S. 217 court. [Footnote 3] These courts acknowledge the strong federal policy in favor of enforcing arbitration agreements, but offer two reasons why the district courts nevertheless should decline to compel arbitration in this situation. First, they assert that such a result is necessary to preserve what they consider to be the court's exclusive jurisdiction over the federal securities claim; otherwise, they suggest, arbitration of an "intertwined" state claim might precede the federal proceeding and the factfinding done by the arbitrator might thereby bind the federal court through collateral estoppel. The second reason they cite is efficiency; by declining to compel arbitration, the court avoids bifurcated proceedings and perhaps redundant efforts to litigate the same factual questions twice.In contrast, the Sixth, Seventh, and Eighth Circuits have held that the Arbitration Act divests the district courts of any discretion regarding arbitration in cases containing both arbitrable and nonarbitrable claims, and instead requires that the courts compel arbitration of arbitrable claims, when asked to do so. These courts conclude that the Act, both through its plain meaning and the strong federal policy it reflects, requires courts to enforce the bargain of the parties to arbitrate, and "not substitute [its] own views of economy and efficiency" for those of Congress. Dickinson v. Heinold Securities, Inc., 661 F.2d 638, 646 (CA7 1981). [Footnote 4]We agree with these latter courts that the Arbitration Act requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums. Accordingly, we reverse the decision not to compel arbitration. Page 470 U. S. 218IIIThe Arbitration Act provides that written agreements to arbitrate controversies arising out of an existing contract"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. By its terms, the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed. §§ 3, 4. Thus, insofar as the language of the Act guides our disposition of this case, we would conclude that agreements to arbitrate must be enforced, absent a ground for revocation of the contractual agreement.It is suggested, however, that the Act does not expressly address whether the same mandate -- to enforce arbitration agreements -- holds true where, as here, such a course would result in bifurcated proceedings if the arbitration agreement is enforced. [Footnote 5] Because the Act's drafters did not explicitly Page 470 U. S. 219 consider the prospect of bifurcated proceedings, we are told, the clear language of the Act might be misleading. Thus, courts that have adopted the view of the Ninth Circuit in this case have argued that the Act's goal of speedy and efficient decisionmaking is thwarted by bifurcated proceedings, and that, given the absence of clear direction on this point, the intent of Congress in passing the Act controls and compels a refusal to compel arbitration. They point out, in addition, that, in the past, the Court on occasion has identified a contrary federal interest sufficiently compelling to outweigh the mandate of the Arbitration Act, see n 1, supra, and they conclude that the interest in speedy resolution of claims should do so in this case. See, e.g., Miley v. Oppenheimer & Co., 637 F.2d 318, 336 (CA5 1981); Cunningham v. Dean Witter Reynolds, Inc., 550 F. Supp. 578, 585 (ED Cal.1982).We turn, then, to consider whether the legislative history of the Act provides guidance on this issue. The congressional history does not expressly direct resolution of the scenario we address. We conclude, however, on consideration of Congress' intent in passing the statute, that a court must compel arbitration of otherwise arbitrable claims when a motion to compel arbitration is made.The legislative history of the Act establishes that the purpose behind its passage was to ensure judicial enforcement of privately made agreements to arbitrate. We therefore reject the suggestion that the overriding goal of the Arbitration Act was to promote the expeditious resolution of claims. The Act, after all, does not mandate the arbitration of all claims, but merely the enforcement -- upon the motion of one of the parties -- of privately negotiated arbitration agreements. The House Report accompanying the Act makes clear that its purpose was to place an arbitration agreement "upon the same footing as other contracts, where it belongs," H.R.Rep. No. 96, 68th Cong., 1st Sess., 1 (1924), and to overrule the judiciary's longstanding refusal to enforce Page 470 U. S. 220 agreements to arbitrate. [Footnote 6] This is not to say that Congress was blind to the potential benefit of the legislation for expedited resolution of disputes. Far from it, the House Report expressly observed:"It is practically appropriate that the action should be taken at this time when there is so much agitation against the costliness and delays of litigation. These matters can be largely eliminated by agreements for arbitration, if arbitration agreements are made valid and enforceable."Id. at 2. Nonetheless, passage of the Act was motivated, first and foremost, by a congressional desire to enforce agreements into which parties had entered, [Footnote 7] and we must not overlook this principal objective when construing the statute, or allow the fortuitous impact of the Act on efficient dispute resolution to overshadow the underlying motivation. Indeed, this conclusion is compelled by the Court's recent holding in Moses H. Cone Memorial Hospital v. Mercury Construction Page 470 U. S. 221 Corp., 460 U. S. 1 (1983), in which we affirmed an order requiring enforcement of an arbitration agreement, even though the arbitration would result in bifurcated proceedings. That misfortune, we noted,"occurs because the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement,"id. at 460 U. S. 20. See also id. at 460 U. S. 24-25 ("The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration").We therefore are not persuaded by the argument that the conflict between two goals of the Arbitration Act -- enforcement of private agreements and encouragement of efficient and speedy dispute resolution -- must be resolved in favor of the latter in order to realize the intent of the drafters. The preeminent concern of Congress in passing the Act was to enforce private agreements into which parties had entered, and that concern requires that we rigorously enforce agreements to arbitrate, even if the result is "piecemeal" litigation, at least absent a countervailing policy manifested in another federal statute. See n 1, supra. By compelling arbitration of state law claims, a district court successfully protects the contractual rights of the parties and their rights under the Arbitration Act.IVIt is also suggested, however, and some Courts of Appeals have held, that district courts should decide arbitrable pendent claims when a nonarbitrable federal claim is before them, because otherwise the findings in the arbitration proceeding might have collateral estoppel effect in a subsequent federal proceeding. This preclusive effect is believed to pose a threat to the federal interest in resolution of securities claims, and to warrant a refusal to compel arbitration. [Footnote 8] Page 470 U. S. 222 Other courts have held that the claims should be separately resolved, but that this preclusive effect warrants a stay of arbitration proceedings pending resolution of the federal securities claim. [Footnote 9] In this case, Dean Witter also asked the District Court to stay the arbitration proceedings pending resolution of the federal claim, and we suspect it did so in response to such holdings.We believe that the preclusive effect of arbitration proceedings is significantly less well settled than the lower court opinions might suggest, and that the consequence of this misconception has been the formulation of unnecessarily contorted procedures. We conclude that neither a stay of proceedings nor joined proceedings is necessary to protect the federal interest in the federal court proceeding, and that the formulation of collateral estoppel rules affords adequate protection to that interest.Initially, it is far from certain that arbitration proceedings will have any preclusive effect on the litigation of nonarbitrable federal claims. Just last Term, we held that neither the full faith and credit provision of 28 U.S.C. § 1738 nor a judicially fashioned rule of preclusion permits a federal court to accord res judicata or collateral estoppel effect to an unappealed arbitration award in a case brought under 42 U.S.C. § 1983. McDonald v. West Branch, 466 U. S. 284 (1984). The full faith and credit statute requires that federal courts give the same preclusive effect to a State's judicial proceedings as would the courts of the State rendering the judgment, and since arbitration is not a judicial proceeding, we held that the statute does not apply to arbitration awards. Id. at 466 U. S. 287-288. The same analysis inevitably would apply to any unappealed state arbitration Page 470 U. S. 223 proceedings. We also declined, in McDonald, to fashion a federal common law rule of preclusion, in part on the ground that arbitration cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard. We therefore recognized that arbitration proceedings will not necessarily have a preclusive effect on subsequent federal court proceedings.Significantly, McDonald also establishes that courts may directly and effectively protect federal interests by determining the preclusive effect to be given to an arbitration proceeding. Since preclusion doctrine comfortably plays this role, it follows that neither a stay of the arbitration proceedings nor a refusal to compel arbitration of state claims is required in order to assure that a precedent arbitration does not impede a subsequent federal court action. The Courts of Appeals that have assumed collateral estoppel effect must be given to arbitration proceedings have therefore sought to accomplish indirectly that which they erroneously assumed they could not do directly.The question of what preclusive effect, if any, the arbitration proceedings might have is not yet before us, however, and we do not decide it. The collateral estoppel effect of an arbitration proceeding is at issue only after arbitration is completed, of course, and we therefore have no need to consider now whether the analysis in McDonald encompasses this case. Suffice it to say that, in framing preclusion rules in this context, courts shall take into account the federal interests warranting protection. As a result, there is no reason to require that district courts decline to compel arbitration, or manipulate the ordering of the resulting bifurcated proceedings, simply to avoid an infringement of federal interests.Finding unpersuasive the arguments advanced in support of the ruling below, we hold that the District Court erred Page 470 U. S. 224 in refusing to grant the motion of Dean Witter to compel arbitration of the pendent state claims. Accordingly, we reverse the decision of the Court of Appeals insofar as it upheld the District Court's denial of the motion to compel arbitration, and we remand for further proceedings consistent with this opinion.It is so ordered | U.S. Supreme CourtDean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985)Dean Witter Reynolds, Inc. v. ByrdNo. 83-1708Argued December 4, 1984Decided March 4, 1985470 U.S. 213SyllabusIn 1981, respondent invested $160,000 in securities through petitioner broker-dealer. The parties had a written agreement to arbitrate any disputes that might arise out of the account. Thereafter, the value of the account declined by more than $100,000. Respondent then filed an action against petitioner in Federal District Court, alleging violations of the Securities Exchange Act of 1934 and of various state law provisions. Petitioner filed a motion to compel arbitration of the pendent state claims under the parties' agreement and to stay arbitration pending resolution of the federal action. Petitioner argued that the Federal Arbitration Act -- which provides that arbitration agreements"shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for revocation of any contract"-- required the District Court to compel arbitration of the state claims. The District Court denied the motion, and the Court of Appeals affirmed.Held: The District Court erred in refusing to grant petitioner's motion to compel arbitration of the state claims. Pp. 470 U. S. 216-224.(a) The Arbitration Act requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even when the result would be the possibly inefficient maintenance of separate proceedings in different forums. By its terms, the Act leaves no room for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed. The Act's legislative history establishes that its principal purpose was to ensure judicial enforcement of privately made arbitration agreements, and not to promote the expeditious resolution of claims. By compelling arbitration of state law claims, a district court successfully protects the parties' contractual rights and their rights under the Arbitration Act. Pp. 470 U. S. 216-221.(b) Neither a stay of arbitration proceedings nor joined proceedings is necessary to protect the federal interest in the federal court proceeding. The formulation of collateral estoppel rules affords adequate protection to that interest. Pp. 470 U. S. 221-223.726 F.2d 552, reversed and remanded.MARSHALL, J., delivered the opinion for a unanimous Court. WHITE, J., filed a concurring opinion, post, p. 470 U. S. 224. Page 470 U. S. 214 |
373 | 1978_78-58 | MR. JUSTICE BLACKMUN delivered the opinion of the Court.The issue here is whether a bankruptcy court may consider evidence extrinsic to the judgment and record of a prior Page 442 U. S. 128 state suit when determining whether a debt previously reduced to judgment is dischargeable under § 17 of the Bankruptcy Act, 11 U.S.C. § 35.IPetitioner G. Garvin Brown III was a guarantor for respondent Mark Paul Felsen and Felsen's car dealership, Le Mans Motors, Inc. Petitioner's guarantee secured a bank loan that financed the dealership's trading in Lotus, Ferrari, and Lamborghini automobiles. In 1975, the lender brought a collection suit against petitioner, respondent, and Le Mans in Colorado state court. Petitioner filed an answer to the bank's complaint, and a cross-claim against respondent and Le Mans. The answer and the cross-claim, by incorporating the answer, alleged that respondent and Le Mans induced petitioner to sign the guarantee "by misrepresentations and nondisclosures of material facts." App. 35. The suit was settled by a stipulation. It provided that the bank should recover jointly and severally against all three defendants, and that petitioner should have judgment against respondent and Le Mans. Neither the stipulation nor the resulting judgment indicated the cause of action on which respondent's liability to petitioner was based. Because the case was settled, respondent's sworn deposition was never made part of the court record.A short time later, respondent filed a petition for voluntary bankruptcy, and sought to have his debt to petitioner discharged. Through discharge, the Bankruptcy Act provides "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt," Loal Loan Co. v. Hunt, 292 U. S. 234, 292 U. S. 244 (1934). By seeking discharge, however, respondent placed the rectitude of his prior dealings squarely in issue, for, as the Court has noted, the Act limits that opportunity to the "honest but unfortunate debtor." Ibid. Section 14 of the Act, 11 U.S.C. § 32, specifies that a debtor may not obtain Page 442 U. S. 129 a discharge if he has committed certain crimes or offenses. Section 17a, the focus of this case, provides that certain types of debts are not affected by a discharge. These include, under § 17a(2),"liabilities for obtaining money or property by false pretenses or false representations . . . or for willful and malicious conversion of the property of another"and, under § 17a(4), debts that "were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity." [Footnote 1]In the bankruptcy court, petitioner sought to establish that respondent's debt to petitioner was not dischargeable. Petitioner alleged that the guarantee debt was the product of respondent's fraud, deceit, and malicious conversion, and so came within §§ 17a(2) and 17a(4). Petitioner contended that respondent had prepared false title certificates, sold automobiles out of trust, and applied the proceeds to private purposes. Respondent answered and moved for summary judgment. Respondent said that the prior state court proceeding did not result in a finding of fraud, and contended that res judicata barred relitigation of the nature of respondent's debt to petitioner, even though the application of § 17 had not been in issue in the prior proceeding.Before 1970, such res judicata claims were seldom heard in federal court. Traditionally, the bankruptcy court determined whether the debtor merited a discharge under § 14, but left the dischargeability under § 17 of a particular debt to the court in which the creditor sued, after bankruptcy, to enforce his prior judgment. Typically, that court was a state court. In 1970, however, Congress altered § 17 to require creditors to apply to the bankruptcy court for adjudication Page 442 U. S. 130 of certain dischargeability questions, including those arising under §§ 17a(2) and 17a(4). [Footnote 2] In In re Nicholas, 510 F.2d 160, cert. denied, 421 U.S. 1012 (1975), the United States Court of Appeals for the Tenth Circuit, confronting for the first time the res judicata question presented here, resolved it by holding that, in determining the dischargeability of a claim previously reduced to judgment, the District Court had properly limited its review to the record and judgment in the prior state court proceeding. The Court of Appeals found that its decision accorded with the majority rule among state courts previously considering the question.The bankruptcy court here, bound by Nicholas, somewhat reluctantly [Footnote 3] confined its consideration to the judgment, pleadings, exhibits, and stipulation which were in the state court record. It declined to hear other evidence, and it refused to consider respondent's deposition that had never been made part of that record. The court concluded that, because neither the judgment nor the record showed that petitioner's allegation of misrepresentation was the basis for the judgment on the cross-claim against respondent, the liability had not been shown to be within §§ 17a(2) and 17a(4). The court granted summary judgment for respondent and held that the debt was dischargeable. App. 44-48.Both the United States District Court for the District of Colorado, id. at 49, and the United States Court of Appeals for the Tenth Circuit affirmed. In an unpublished opinion, the Court of Appeals followed Nicholas, applied res judicata, and said that the prior consent decree was conclusive as to the nature of respondent's liability. The court noted that neither the stipulation nor the judgment mentioned fraud, and the Page 442 U. S. 131 court said that petitioner had not even met the state requirement that fraud be pleaded with specificity. See Colo.Rule Civ.Proc. 9(b). The court agreed that respondent's debt was dischargeable. App. 556.Since Nicholas was decided, every other Court of Appeals that has considered the question has rejected res judicata and held that extrinsic evidence may be admitted in order to determine accurately the dischargeability under § 17 of a debt previously reduced to judgment in state court. [Footnote 4] We granted certiorari to resolve this conflict. 439 U.S. 925 (1978).IIRes judicata ensures the finality of decisions. Under res judicata, "a final judgment on the merits bars further claims by parties or their privies based on the same cause of action." Montana v. United States, 440 U. S. 147, 440 U. S. 153 (1979). Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 308 U. S. 378 (1940); 1B J. Moore, Federal Practice � 0.405[1] (2d ed.1974). Res judicata thus encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.Bankruptcy often breeds litigation, and respondent contends that the policy of repose which underlies res judicata Page 442 U. S. 132 has particular force here. Respondent argues that petitioner chose not to press the question of fraud in the state court proceeding even though an adjudication of fraud would have entitled petitioner to extraordinary remedies such as exemplary damages and body execution. [Footnote 5] Respondent says that, because petitioner did not obtain a stipulation concerning fraud in the prior state court proceeding, he is now barred from litigating matters that could have been concluded in the consent judgment. See United States v. Armour & Co., 402 U. S. 673, 402 U. S. 681-682 (1971). Applying res judicata in bankruptcy court, it is argued, prevents a creditor from raising as an afterthought claims so insubstantial that they had previously been overlooked. In respondent's view, res judicata stops harassment and promotes the orderly processes of justice by encouraging the consolidation of the entire dispute between debtor and creditor into one prior proceeding.Because res judicata may govern grounds and defenses not previously litigated, however, it blockades unexplored paths that may lead to truth. For the sake of repose, res judicata shields the fraud and the cheat, as well as the honest person. It therefore is to be invoked only after careful inquiry. Petitioner contends, and we agree, that here careful inquiry reveals that neither the interests served by res judicata, the process of orderly adjudication in state courts, nor the policies of the Bankruptcy Act would be well served by foreclosing petitioner from submitting additional evidence to prove his case.ARespondent's res judicata claim is unlike those customarily entertained by the courts. For example, this case is readily distinguishable from Chicot County Drainage Dist. v. Baxter Page 442 U. S. 133 State Bank, supra. There, bondholders participated in a federal statutory proceeding for the readjustment of indebtedness, and a judgment was entered. After parties from another State succeeded in having the statute declared unconstitutional, the bondholders brought a suit seeking to collect the sums that had been due before readjustment. The Court held that res judicata barred the second suit, and said that the bondholders "were not the less bound by the decree" because they failed to raise the constitutional claim in the first proceeding. 308 U.S. at 308 U. S. 375.Here, in contrast, petitioner readily concedes that the prior decree is binding. That is the cornerstone of his claim. He does not assert a new ground for recovery, nor does he attack the validity of the prior judgment. Rather, what he is attempting to meet here is the new defense of bankruptcy which respondent has interposed between petitioner and the sum determined to be due him. A substantial minority of state court decisions, particularly those following Fidelity & Casualty Co. v. Golombosky, 133 Conn.317, 322-324, 50 A.2d 817, 819-820 (1946) (Maltbie, C.J.), have recognized this distinction and have refused to apply res judicata in determining the dischargeability of debts previously reduced to judgment. [Footnote 6] Respondent has upset the repose that would Page 442 U. S. 134 justify treating the prior state court proceeding as final, and it would hardly promote confidence in judgments to prevent petitioner from meeting respondent's new initiative.BRespondent contends that the § 17 questions raised here, or similar issues of state law, could have been considered in the prior state court proceeding and therefore are not "new." Respondent argues that the state court collection suit is the appropriate forum for resolving all debtor-creditor disputes, including those concerning dischargeability. While, in some circumstances, the consolidation of proceedings may be desirable, here consolidation would undercut a statutory policy in favor of resolving § 17 questions in bankruptcy court, and would force state courts to decide these questions at a stage when they are not directly in issue and neither party has a full incentive to litigate them. See In re Pigge, 539 F.2d 369, 371-372 (CA4 1976).1. Considerations material to discharge are irrelevant to the ordinary collection proceeding. The creditor sues on the Page 442 U. S. 135 instrument which created the debt. Even if an issue similar to those created by § 17 should arise, the state law concept is likely to differ from that adopted in the federal statute. See 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy � 17.16[6], p. 1650.1 (14th ed.1978). For example, in Davis v. Aetna Acceptance Co., 293 U. S. 328 (1934), the Court held that a mere technical conversion by a bankrupt dealer in automobiles was not "willful and malicious" within the meaning of § 17 by virtue of being actionable under state law, nor was a misappropriation of funds, held pursuant to a "trust receipt," a breach of an express trust sufficient to constitute an act done "as an officer or in any fiduciary capacity."When § 17 issues are not identical to those arising under state law, the parties have little incentive to litigate them. In the collection suit, the debtor's bankruptcy is still hypothetical. The rule proposed by respondent would force an otherwise unwilling party to try § 17 questions to the hilt in order to protect himself against the mere possibility that a debtor might take bankruptcy in the future. In many cases, such litigation would prove, in the end, to have been entirely unnecessary, and it is not surprising that at least one state court has expressly refused to embroil itself in an advisory adjudication of this kind. See Pioneer Finance Thrift Co. v. Powell, 21 Utah 2d 201, 204, 443 P.2d 389, 391 (1968). And absent trial on the merits, there is no particular reason to favor extraneous facts thrown into a record for § 17 purposes over facts adduced before the bankruptcy court.2. If a state court should expressly rule on § 17 questions, then giving finality to those rulings would undercut Congress' intention to commit § 17 issues to the jurisdiction of the bankruptcy court. The 1970 amendments eliminated post-bankruptcy state court collection suits as a means of resolving certain § 17 dischargeability questions. In those suits, creditors had taken advantage of debtors who were unable to retain counsel because bankruptcy had stripped them of their Page 442 U. S. 136 assets. Congress' primary purpose was to stop that abuse. A secondary purpose, however, was to take these § 17 claims away from state courts that seldom dealt with the federal bankruptcy laws and to give those claims to the bankruptcy court so that it could develop expertise in handling them. [Footnote 7] By the express terms of the Constitution, bankruptcy law is federal law, U.S.Const., Art. I, § 8, cl. 4, and the Senate Report accompanying the amendment described the bankruptcy court's jurisdiction over these § 17 claims as "exclusive." S.Rep. No 91-1173, p. 2 (1970). While Congress did not expressly confront the problem created by prebankruptcy state court adjudications, it would be inconsistent with the philosophy of the 1970 amendments to adopt a policy of res judicata which takes these § 17 questions away from bankruptcy courts and forces them back into state courts. See In re McMillan, 579 F.2d 289, 293 (CA3 1978); In re Houtman, 568 F.2d 651, 654 (CA9 1978); In re Pigge, 539 F.2d at 371; 1 D. Cowans, Bankruptcy Law and Practice Page 442 U. S. 137 § 253, p. 298 (178). Compare 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy 1117.16[6], p. 1650.1 n. 50 (14th ed.1978) (1970 Act), with id. 17.16[4], p. 1643 (prior state law).Respondent argues that petitioner could have avoided such a result and preserved his dischargeability contentions for bankruptcy court review by bargaining for a stipulation that § 17 issues were not resolved by the consent judgment. It makes little sense, however, to resolve a federal dischargeability question according to whether or not the parties in state court waived their right to engage in hypothetical litigation in an inappropriate forum.3. Respondent also contends that petitioner had an adequate incentive to prove state law fraud, which might have entailed proof identical to that required by § 17. Petitioner, however, rejected whatever lure exemplary damages and body execution may have provided. That rejection does not conclusively show that petitioner thought respondent was innocent of fraud. Petitioner may have thought those remedies would not be advantageous to him. [Footnote 8] While respondent is certainly entitled to claim that res judicata would bar further pursuit of those extraordinary remedies in state court, their hypothetical desirability provides no basis for preventing Page 442 U. S. 138 petitioner from recovering on the debt, the remedy he elected from the beginning.CRefusing to apply res judicata here would permit the bankruptcy court to make an accurate determination whether respondent in fact committed the deceit, fraud, and malicious conversion which petitioner alleges. These questions are now, for the first time, squarely in issue. They are the type of question Congress intended that the bankruptcy court would resolve. That court can weigh all the evidence, and it can also take into account whether or not petitioner's failure to press these allegations at an earlier time betrays a weakness in his case on the merits.Some indication that Congress intended the fullest possible inquiry arises from the history of § 17. In the 1898 Bankruptcy Act, Congress provided that only "judgments" sounding in fraud would be excepted from a bankrupt's discharge. 30 Stat. 550. In 1903, Congress substituted "liabilities" for "judgments." 32 Stat. 798. The amendment, said the accompanying House Report was "in the interest of justice and honest dealing and honest conduct," and it was intended "to exclude beyond peradventure certain liabilities growing out of offenses against good morals." [Footnote 9] This broad language suggests that all debts arising out of conduct specified in § 17 should be excepted from discharge, and the mere fact that a conscientious creditor has previously reduced his claim to judgment should not bar further inquiry into the true nature of the debt. Cf. Hargadine-McKittrick Dry Goods Co. v. Hudson, 111 F. 361, 362-363 (ED Mo.1901), aff'd, 122 F. 232, 235-236 (CA8 1903) (comparing 1903 Act to prior law).In sum, we reject respondent's contention that res judicata applies here, and we hold that the bankruptcy court is not confined to a review of the judgment and record in the prior Page 442 U. S. 139 state court proceedings when considering the dischargeability of respondent's debt. Adopting the rule respondent urges would take § 17 issues out of bankruptcy courts well suited to adjudicate them, and force those issues onto state courts concerned with other matters, all for the sake of a repose the bankrupt has long since abandoned. [Footnote 10] This we decline to do.The judgment of the Court of Appeals is reversed.It is so ordered | U.S. Supreme CourtBrown v. Felsen, 442 U.S. 127 (1979)Brown v. FelsenNo. 78-58Argued February 21, 1979Decided June 4, 1979442 U.S. 127SyllabusIn the settlement of a state court collection suit, respondent stipulated that petitioner should have judgment against respondent. Shortly thereafter, respondent filed for bankruptcy, and petitioner sought to establish that respondent's debt to him was not dischargeable because it was the product of respondent's fraud, deceit, and malicious conversion, and thus came within §§ 17a(2) and (4) of the Bankruptcy Act, which provide that such debts are not affected by a discharge. The bankruptcy court granted summary judgment for respondent. The court held that the record in the state court proceeding did not establish that respondent had committed fraud, and res judicata barred petitioner from offering additional evidence to prove the underlying nature of the debt. The District Court, and Court of Appeals affirmed.Held: The bankruptcy court is not confined to a review of the judgment and record in the prior state court proceeding when determining the dischargeability of respondent's debt. When a debtor asserts the new defense of bankruptcy, res judicata does not bar the creditor from offering additional evidence to meet that defense. A contrary rule would force premature federal issues on the state courts and would frustrate the command of the Bankruptcy Act that only honest debts are to be discharged. Pp. 442 U. S. 131-139.Reversed.BLACKMUN, J., delivered the opinion for a unanimous Court. |
374 | 1964_628 | MR. JUSTICE BRENNAN delivered the opinion of the Court.The question for decision is whether, under the Internal Revenue Code of 1939, certain gains realized by the taxpayer are taxable as capital gains or as ordinary income. The taxpayer bought noninterest-bearing promissory notes from the issuers at prices discounted below the face amounts. With one exception, each of the notes was held for more than six months, and, before maturity and in the year of purchase, was sold for less than its face amount but more than its issue price. [Footnote 1] It is conceded that the Page 381 U. S. 56 gain in each case was the economic equivalent of interest for the use of the money to the date of sale, but the taxpayer reported the gains as capital gains. The Commissioner of Internal Revenue determined that the gains attributable to original issue discount were but interest in another form, and therefore were taxable as ordinary income. Respondent paid the resulting deficiencies, and, in this suit for refund, prevailed in the District Court for the Northern District of Ohio, 214 F. Supp. 631, and in the Court of Appeals for the Sixth Circuit, 335 F.2d 561. Because this treatment as capital gains conflicts with the result reached by other courts of appeals, [Footnote 2] we granted certiorari. 379 U.S. 944. We reverse.The more favorable capital gains treatment applied only to gain on "the sale or exchange of a capital asset." § 117(a)(4). Although original issue discount becomes property when the obligation falls due or is liquidated prior to maturity, and § 117(a)(1) defined a capital asset as "property held by the taxpayer," [Footnote 3] we have held that"not everything which can be called property in the ordinary sense and which is outside the statutory exclusions qualifies as a capital asset. This Court has long held that the term 'capital asset' is to be construed narrowly in accordance with the purpose Page 381 U. S. 57 of Congress to afford capital gains treatment only in situations typically involving the realization of appreciation in value accrued over a substantial period of time, and thus to ameliorate the hardship of taxation of the entire gain in one year."Commissioner v. Gillette Motor Transport, Inc., 364 U. S. 130, 364 U. S. 134. See also Corn Products Co. v. Commissioner, 350 U. S. 46, 350 U. S. 52. In applying this principle, this Court has consistently construed "capital asset" to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income. Thus, the Court has held that "capital asset" does not include compensation awarded a taxpayer as representing the fair rental value of its facilities during the period of their operation under government control, Commissioner v. Gillette Motor Transport, Inc., supra; the amount of the proceeds of the sale of an orange grove attributable to the value of an unmatured annual crop, Watson v. Commissioner, 345 U. S. 544; an unexpired lease, Hort v. Commissioner, 313 U. S. 28; and oil payment rights, Commissioner v. P. G. Lake, Inc., 356 U. S. 260. Similarly, earned original issue discount cannot be regarded as"typically involving the realization of appreciation in value accrued over a substantial period of time . . . [given capital gains treatment] to ameliorate the hardship of taxation of the entire gain in one year."Earned original issue discount serves the same function as stated interest, concededly ordinary income, and not a capital asset; it is simply "compensation for the use or forbearance of money." Deputy v. du Pont, 308 U. S. 488, 308 U. S. 498; cf. Lubin v. Commissioner, 335 F.2d 209 (C.A.2d Cir.). Unlike the typical case of capital appreciation, the earning of discount to maturity is predictable and measurable, and is"essentially a substitute for . . . payments which § 22(a) expressly characterizes as gross income[; thus,] it must be regarded as ordinary income, and Page 381 U. S. 58 it is immaterial that, for some purposes, the contract creating the right to such payments may be treated as 'property' or 'capital.'"Hort v. Commissioner, supra, at 313 U. S. 31. The $6 earned on a one-year note for $106 issued for $100 is precisely like the $6 earned on a one-year loan of $100 at 6% stated interest. The application of general principles would indicate, therefore, that earned original issue discount, like stated interest, should be taxed under § 22(a) as ordinary income. [Footnote 4]The taxpayer argues, however, that administrative practice and congressional treatment of original issue discount under the 1939 Code establish that such discount is to be accounted for as capital gain when realized. Section 1232(a) (2)(A) of the Internal Revenue Code of 1954 [Footnote 5] provides that,"upon sale or exchange of . . . evidences Page 381 U. S. 59 of indebtedness issued after December 31, 1954, held by the taxpayer more than 6 months, any gain realized . . . [up to the prorated amount of original issue discount] shall be considered as gain from the sale or exchange of property which is not a capital asset,"that is, it is to be taxed at ordinary income rates. From this, the taxpayer would infer that Congress understood prior administrative and legislative history as extending capital gains treatment to realized original issue discount. If administrative practice and legislative history before 1954 did, in fact, ignore economic reality and treat stated interest and original issue discount differently for tax purposes, the taxpayer should prevail. See Hanover Bank v. Commissioner, 369 U. S. 672; Deputy v. du Pont, supra; cf. Helvering v. R. J. Reynolds Tobacco Co., 306 U. S. 110. But the taxpayer must persuade us that this was clearly the case, see Watson v. Commissioner, supra, at 345 U. S. 551, and has not done so.The taxpayer refers us to various statutory provisions treating original issue discount as ordinary income in specific situations, arguing that these establish a congressional understanding that, in situations not covered by such provisions, original issue discount is entitled to capital Page 381 U. S. 60 gains treatment. Even if these provisions were merely limited applications of the principle of § 1232(a)(2), they may demonstrate not that the general rule was to the contrary, but that the general rule was unclear, see Brandis, Effect of Discount or Premium on Bondholder's North Carolina Income Tax, 19 N.C.L.Rev. 1, 7 (1940), and that Congress wished to avoid any doubt as to its treatment of particular situations. Cf. S.Rep.No. 1622, 83d Cong., 2d Sess., p. 112 (1954).First, we are referred to §§ 42(b) and 42(c) of the 1939 Code. [Footnote 6] Section 42(b) applied, inter alia, to discounted noninterest-bearing obligations periodically redeemable for specified increasing amounts, and permitted Page 381 U. S. 61 cash basis taxpayers an election to accrue the annual increase. If anything, the statutory language supports the Government's position, for it implies that an accrual basis taxpayer has no election, but must accrue the increases; this seems to indicate a congressional understanding that such increases were ordinary income. Section 42(c) postpones recognition of discount on short-term government obligations until maturity or sale. That provision, however, has its own history. Earlier law, requiring the proration of original issue discount according to the time the obligation was held, was considered to "impose on taxpayers the duty of making burdensome computations." See S.Rep.No.673, Part 1, 77th Cong., 1st Sess., p. 30 (1941). The proration provisions had, in turn, succeeded a statute enacted not to make an exception to a general rule of capital gains treatment for issue discount, but to insure that the then-existing exemption for discount as representing interest could be claimed by taxpayers other than the original holder. H.R.Conf.Rep.No.17, 71st Cong., 1st Sess., p. 2 (1929). Since the tax exemption for Treasury paper was eliminated in 1941, there was no longer any important reason to distinguish exempt original issue discount from nonexempt market discount, and § 42(c) was enacted expressly to simplify administration by eliminating the necessity for allocation between interest and capital gain or loss, and treating all discount as income, but taxable only on realization. [Footnote 7] If Page 381 U. S. 62 the inferences drawn by respondent were correct, these provisions would be rendered superfluous by the enactment of § 1232(a)(2), but they have been carried forward as §§ 454(a) and (b) of the 1954 Code.It is also argued that §§ 201(e) and 207(d) of the 1939 Code [Footnote 8] manifested a congressional view opposed to ordinary income treatment. These sections required annual accrual of bond premium and discount by life and mutual casualty insurance companies. But again, somewhat like § 42(b), these provisions provided for accrual by cash basis taxpayers. See Massachusetts Mutual Life Ins. Co. v. United States, 288 U. S. 269. Moreover, the Commissioner Page 381 U. S. 63 had interpreted these provisions as requiring him to treat market discounts or premiums, as well as interest agreed upon by the borrower in the guise of original issue discount, as ordinary income items. [Footnote 9]Thus, the taxpayer has not demonstrated that, in specifying ordinary income treatment for original issue discount in particular situations, Congress evinced its understanding that such discount would otherwise be entitled to capital gains treatment. Therefore, we turn to the question whether Treasury practice and decisional law preclude ordinary income treatment.The taxpayer premises this part of his argument primarily upon the case of Caulkins v. Commissioner, 1 T.C. 656, acq., 1944 Cum.Bull. 5, aff'd, 144 F.2d 482 (C.A.6th Cir.), acq. withdrawn, 1955-1 Cum.Bull. 7. [Footnote 10] The taxpayer there purchased an "Accumulative Installment Certificate" providing for 10 annual payments of $1,500 in return for $20,000 at the end of 10 years. The certificate provided for gradually increasing cash surrender and loan values. In 1939, the taxpayer received $20,000 as agreed and, relying on the long-term capital gains provisions of the Revenue Act of 1938, c. 289, 52 Stat. 447, reported only half the profit as taxable income. Acting primarily on the theory that the certificate was not in registered form as required by § 117(f), the Commissioner sought to treat the increment as interest or as income arising out of a transaction entered into for profit. The Tax Court upheld the taxpayer, finding that the certificate was in Page 381 U. S. 64 registered form within the meaning of § 117(f) of the Revenue Act of 1938, a provision identical to § 117(f) of the 1939 Code, [Footnote 11] but its discussion of the capital gains question is, at best, opaque. [Footnote 12] The Court of Appeals acknowledged that "the transaction presents no true aspect of capital gain," and that"Congress might well have made the differentiation urged by the Commissioner, since it is difficult to perceive any practical reason for taxing increment of the type involved here differently from ordinary income. . . . [as] consideration paid for the use Page 381 U. S. 65 of the amounts paid in. . . ."144 F.2d at 484. Nevertheless, it construed the words "amounts received by the holder upon . . . retirement" in § 117(f) as unsusceptible of partition, and therefore as including the increment attributable to interest, which, with the principal amount, was thus taxable only as capital gain.Caulkins did not unambiguously establish that original issue discount was itself a "capital asset" entitled to capital gains treatment. It held only that, under § 117(f), Congress had not provided that the "amount" received on retirement might be broken down into its component parts. This was inconsistent with the view expressed in Williams v. \, 152 F.2d 570 (C.A.2d Cir.), and approved by this Court in Watson v. Commissioner, supra, at 345 U. S. 552, that "Congress plainly did mean to comminute the elements of a business; plainly, it did not regard the whole as capital assets.'" 152 F.2d at 572. The Tax Court has consistently regarded Caulkins as having erroneously read § 117(f) to preclude differentiation of the sources of proceeds on redemption. Paine v. Commissioner, 23 T.C. 391, 401, reversed on other grounds, 236 F.2d 398 (C.A.8th Cir.); Stanton v. Commissioner, 34 T.C. 1; see 3B Mertens, The Law of Federal Income Taxation 184-186, 378-381 (Zimet rev.). The Commissioner, in addition to withdrawing his acquiescence in Caulkins, has also rejected the interpretation of "amount" under § 117(f) as not subject to apportionment under general principles. Rev.Rul. 119, 1953-2 Cum.Bull. 95; Rev.Rul. 55-136, 1955-1 Cum.Bull. 213; Rev.Rul. 56-299, 1956-1 Cum.Bull. 603. To the extent the Tax Court's decision in Caulkins rested, as its opinion indicates, on a reading of § 117(f) to require more favorable treatment on redemption than on sale, it is clearly at odds with the legislative purpose, which was merely to treat alike redemptions and sales or exchanges of securities in registered form or with coupons attached, Page 381 U. S. 66 and not to extend the class of capital assets. Rev.Rul. 56-299, supra. Such an interpretation, which would not benefit the taxpayer in the sale transactions here involved, may underlie the Tax Court's decision, but it has no justification in logic or in the legislative history, and even the taxpayer would reject such a meaning, however well supported by the Caulkins acquiescence. Finally, notwithstanding the acquiescence, what little other administrative practice we are referred to seems contrary to Caulkins. See I.T. 1684, II-1 Cum.Bull. 60 (1923).The concept of discount or premium as altering the effective rate of interest is not to be rejected as an "esoteric concept derived from subtle and theoretic analysis." Old Colony R. Co. v. Commissioner, 284 U. S. 552, 284 U. S. 561. For, despite some expressions indicating a contrary view, [Footnote 13] this Court has often recognized the economic function of discount as interest. In Old Mission Portland Cement Co. v. Helvering, 293 U. S. 289, 293 U. S. 290, for example, the Court regarded it as "no longer open to question that amortized bond discount may be deducted in the separate return of a single taxpayer." [Footnote 14] The radical changes since Caulkins in the concept of treatment of accumulated interest under the 1939 Code are consistent with this. For example, accrued bond interest on stated interest bonds sold between interest dates has long been taxable to the seller of the bonds. See I.T. 3175, 1938-1 Cum.Bull. 200. But, on "flat" sales of defaulted notes at prices in excess of face Page 381 U. S. 67 amount, with no attribution of interest arrearages in the sale price, the requirement of allocation to treat a portion of the proceeds as ordinary income dates only from 1954. Fisher v. Commissioner, 209 F.2d 513 (C.A.6th Cir.); see Jaglom v. Commissioner, 303 F.2d 847, (C.A.2d Cir.). The propriety of such allocation in the present case is even more evident; unlike defaulted bond interest, there is no suggestion that full payment of the original issue discount will not be made at maturity.For these reasons, we hold that earned original issue discount is not entitled to capital gains treatment under the 1939 Code.Reversed | U.S. Supreme CourtUnited States v. Midland-Ross Corp., 381 U.S. 54 (1965)United States v. Midland-Ross Corp.No. 628Argued March 31, 1965Decided May 3, 1965381 U.S. 54SyllabusRespondent taxpayer, in 1952-1954, bought noninterest-bearing promissory notes at prices discounted below the face amounts and held them over six months. Before maturity and in the year of purchase, it sold each below the face amount, but for more than the issue price. The gains, concededly the economic equivalent of interest, were reported as capital gains. The Commissioner of Internal Revenue determined that the gains attributable to original discount were but interest in another form, and therefore taxable as ordinary income. After paying the deficiencies, respondent brought this refund action, which both the District Court and the Court of Appeals decided in its favor.Held: Earned original issue discount is not entitled to capital gains treatment under the 1939 Internal Revenue Code. Pp. 381 U. S. 56-67.(a) Although capital gains treatment is to be accorded to the sale of a "capital asset," defined in § 117(a)(1) of the Internal Revenue Code of 1939 as "property" held by the taxpayer, the term "capital asset" is to be construed narrowly so as to apply only where there has been realization of appreciation in value accrued over a substantial period of time. Pp. 381 U. S. 56-57.(b) "Capital asset" does not include an item like earned original issue discount, which serves the same function as stated interest, the earning of which is predictable and does not represent market appreciation. Pp. 381 U. S. 57-58.(c) In specifying ordinary income treatment for original issue discount in § 1232(a)(2) of the Internal Revenue Code of 1954 and in special provisions of the 1939 Code, Congress did not indicate any understanding that such discount would be entitled to capital gains treatment in the absence of such provisions. Pp. 381 U. S. 58-63.(d) A case in which the Tax Court allowed capital gains treatment of the full amount the taxpayer received upon retirement of an "Accumulative Installment Certificate" -- Caulkins v. Commissioner, 1 T.C. 656, acq., 1944 Cum.Bull. 5, aff'd, 144 F.2d 482 (C.A. 6th Cir.), acq. withdrawn, 1955-1 Cum.Bull. 7 -- did not Page 381 U. S. 55 unambiguously establish that original issue discount was itself a "capital asset" entitled to capital gains treatment, and what little other administrative practice dealt with the question appears contrary to its holding. Pp. 381 U. S. 63-66.(e) This Court has often recognized the economic function of discount as interest. Pp. 381 U. S. 66-67.335 F.2d 561 reversed. |
375 | 1976_75-946 | MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.The question presented on this appeal from the Supreme Court of Wisconsin is whether a State may constitutionally require that an elected board of education prohibit teachers, other than union representatives, to speak at open meetings, at which public participation is permitted, if such speech is addressed to the subject of pending collective bargaining negotiations.The Madison Board of Education and Madison Teachers, Inc. (MTI), a labor union, were parties to a collective bargaining agreement during the calendar year of 1971. [Footnote 1] In January, 1971, negotiations commenced for renewal of the agreement, and MTI submitted a number of proposals. One among them called for the inclusion of a so-called "fair share" clause, which would require all teachers, whether members of MTI or not, to pay union dues to defray the costs of collective bargaining. Wisconsin law expressly permits inclusion of "fair share" provisions in municipal employee collective bargaining agreements. Wis.Stat. § 111.70(2) (1973). Another proposal presented by the union was a provision for binding arbitration of teacher dismissals. Both of these provisions were resisted by the school board. The negotiations deadlocked in November, 1971, with a number of issues still unresolved, among them "fair share" and arbitration.During the same month, two teachers, Holmquist and Reed, who were members of the bargaining unit but not members of the union, mailed a letter to all teachers in the district Page 429 U. S. 170 expressing opposition to the "fair share" proposal. [Footnote 2] Two hundred teachers replied, most commenting favorably on Holmquist and Reed's position. Thereupon, a petition was drafted calling for a one-year delay in the implementation of "fair share" while the proposal was more closely analyzed by an impartial committee. [Footnote 3] The petition was circulated Page 429 U. S. 171 to teachers in the district on December 6, 1971. Holmquist and Reed intended to present the results of their petition effort to the school board and to MTI at the school board's public meeting that same evening.Because of the stalemate in the negotiations, MTI arranged to have pickets present at the school board meeting. In addition, 300 to 400 teachers attended in support of the union's position. During a portion of the meeting devoted to expression of opinion by the public, the president of MTI took the floor and spoke on the subject of the ongoing negotiations. He concluded his remarks by presenting to the board a petition signed by 1,300-1,400 teachers calling for the expeditious resolution of the negotiations. Holmquist was next given the floor, after John Matthews, the business representative of MTI, unsuccessfully attempted to dissuade him from speaking. Matthews had also spoken to a member of the school board before the meeting and requested that the board refuse to permit Holmquist to speak. Holmquist stated that he represented "an informal committee of 72 teachers in 49 schools" and that he desired to inform the board of education, as he had already informed the union, of the results of an informational survey concerning the "fair share" clause. He then read the petition which had been circulated to the teachers in the district that morning and stated that, in the 31 schools from which reports had been received, 53 of the teachers had already signed the petition. Page 429 U. S. 172Holmquist stated that neither side had adequately addressed the issue of "fair share," and that teachers were confused about the meaning of the proposal. He concluded by saying:"Due to this confusion, we wish to take no stand on the proposal itself, but ask only that all alternatives be presented clearly to all teachers and, more importantly, to the general public to whom we are all responsible. We ask simply for communication, not confrontation."The sole response from the school board was a question by the president inquiring whether Holmquist intended to present the board with the petition. Holmquist answered that he would. Holmquist's presentation had lasted approximately 2 1/2 minutes.Later that evening, the board met in executive session and voted a proposal acceding to all of the union's demands with the exception of "fair share." During a negotiating session, the following morning, MTI accepted the proposal and a contract was signed on December 14, 1971.(1)In January, 1972, MTI filed a complaint with the Wisconsin Employment Relations Commission (WERC) claiming that the board had committed a prohibited labor practice by permitting Holmquist to speak at the December 6 meeting. MTI claimed that, in so doing, the board had engaged in negotiations with a member of the bargaining unit other than the exclusive collective bargaining representative, in violation of Wis.Stat. §§ 111.70(3)(a) 1, 4 (1973). [Footnote 4] Following Page 429 U. S. 173 a hearing, the Commission concluded that the board was guilty of the prohibited labor practice and ordered that it"immediately cease and desist from permitting employes, other than representatives of Madison Teachers Inc., to appear and speak at meetings of the Board of Education on matters subject to collective bargaining between it and Madison Teachers Inc."The Commission's action was affirmed by the Circuit Court of Dane County.The Supreme Court of Wisconsin affirmed. 69 Wis.2d 200, 231 N.W.2d 206. The court recognized that both the Federal and State Constitutions protect freedom of speech and the right to petition the government, but noted that these rights may be abridged in the face of "a clear and present danger that [the speech] will bring about the substantive evils that [the legislature] has a right to prevent.'" Id. at 211, 231 N.W.2d at 212, citing Schenck v. United States, 249 U. S. 47 (1919). The court held that abridgment of the speech in this case was justified in order "to avoid the dangers attendant upon relative chaos in labor management relations." 69 Wis.2d at 212, 231 N.W.2d at 213.(2)The Wisconsin court perceived "clear and present danger" based upon its conclusion that Holmquist's speech before the school board constituted "negotiation" with the board. Permitting such "negotiation," the court reasoned, would undermine the bargaining exclusivity guaranteed the majority union under Wis.Stat. § 111.70(3)(a)4 (1973). From that Page 429 U. S. 174 premise, it concluded that teachers' First Amendment rights could be limited. Assuming, arguendo, that such a "danger" might in some circumstances justify some limitation of First Amendment rights, we are unable to read this record as presenting such danger as would justify curtailing speech.The Wisconsin Supreme Court's conclusion that Holmquist's terse statement during the public meeting constituted negotiation with the board was based upon its adoption of the lower court's determination that,""[e]ven though Holmquist's statement superficially appears to be merely a position statement,' the court deems from the total circumstances that it constituted `negotiating.'"" This cryptic conclusion seems to ignore the ancient wisdom that calling a thing by a name does not make it so. [Footnote 5] Holmquist did not seek to bargain or offer to enter into any bargain with the board, nor does it appear that he was authorized by any other teachers to enter into any agreement on their behalf. Although his views were not consistent with those of MTI, communicating such views to the employer could not change the fact that MTI alone was authorized to negotiate and to enter into a contract with the board.Moreover the school board meeting at which Holmquist was permitted to speak was open to the public. [Footnote 6] He addressed Page 429 U. S. 175 the school board not merely as one of its employees, but also as a concerned citizen, seeking to express his views on an important decision of his government. We have held that teachers may not be"compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work."Pickering v. Board of Education, 391 U. S. 563, 391 U. S. 568 (1968). See also Keyishian v. Board of Regents, 385 U. S. 589 (1967); Shelton v. Tucker, 364 U. S. 479 (1960); Wieman v. Updegraff, 344 U. S. 183 (1952). Where the State has opened a forum for direct citizen involvement, it is difficult to find justification for excluding teachers who make up the overwhelming proportion of school employees and who are most vitally concerned with the proceedings. [Footnote 7] It is conceded that any citizen could have presented precisely the same points and provided the board with the same information as did Holmquist.Regardless of the extent to which true contract negotiations between a public body and its employees may be regulated -- an issue we need not consider at this time -- the participation in public discussion of public business cannot be confined to one category of interested individuals. [Footnote 8] To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis Page 429 U. S. 176 of constitutional guarantees. [Footnote 9] Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech. See Police Dept. of Chicago v. Mosley, 408 U. S. 92, 408 U. S. 96 (1972). [Footnote 10](3)The WERC's order is not limited to a determination that a prohibited labor practice had taken place in the past; it also restrains future conduct. By prohibiting the school board from "permitting employes . . . to appear and speak at meetings of the Board of Education," the order constitutes an indirect, but effective, prohibition on persons such as Holmquist from communicating with their government. The order would have a substantial impact upon virtually all communication between teachers and the school board. The order prohibits speech by teachers "on matters subject to collective bargaining." [Footnote 11] As the dissenting opinion below noted, however, Page 429 U. S. 177 there is virtually no subject concerning the operation of the school system that could not also be characterized as a potential subject of collective bargaining. Teachers not only constitute the overwhelming bulk of employees of the school system, but they are the very core of that system; restraining teachers' expressions to the board on matters involving the operation of the schools would seriously impair the board's ability to govern the district. The Wisconsin court's reliance on Broadrick v. Oklahoma, 413 U. S. 601 (1973), for the proposition that one whose conduct falls squarely within an otherwise valid proscription may not challenge that proscription on grounds of vagueness, is inapposite. The challenged portion of the order is designed to govern speech and conduct in the future, not to punish past conduct, and as such it is the essence of prior restraint.The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.Reversed | U.S. Supreme CourtMadison Sch. Dist. v. Wisconsin Empl. Rel. Comm'n, 429 U.S. 167 (1976)City of Madison Joint School District No. 8 v.Wisconsin Employment Relations CommissionNo. 75-946Argued October 12, 1976Decided December 8, 1976429 U.S. 167SyllabusDuring the course of a regularly scheduled, open meeting of appellant Board of Education, public discussion turned to currently pending labor negotiations between the board and the teachers' union. One speaker was a nonunion teacher who, over union objection, addressed one topic of the pending negotiations, namely, the union's demand for a "fair share" clause, which would require all teachers (whether union members or not) to pay union dues. He read a petition signed by the teachers in the district, calling for postponement of the issue until it could be given closer examination by an impartial committee. Subsequently, after a collective bargaining agreement had been signed containing all the union's demands except the "fair share" clause, the union filed a complaint with the appellee Wisconsin Employment Relations Commission (WERC), claiming that the board had committed a prohibited labor practice in violation of Wisconsin law by permitting the nonunion teacher to speak at its public meeting because that constituted negotiations by the board with a member of the bargaining unit other than the exclusive collective bargaining representative. The WERC found the board guilty of the prohibited labor practice and ordered that it immediately cease and desist from permitting any employees but union officials to appear and speak at board meetings on matters subject to collective bargaining. The WERC was upheld on appeal, the Wisconsin Supreme Court concluding that the nonunion teacher's statement before the board constituted "negotiation" with the board, and holding that the abridgment of speech by the WERC was justified in order "to avoid the dangers attendant upon relative chaos in labor-management relations."Held:1. The circumstances do not present such danger to labor-management relations as to justify curtailing speech in the manner ordered by the WERC. Pp. 429 U. S. 173-176.(a) Where it does not appear that the nonunion teacher sought to bargain or offered to enter into any bargain with the board or that he was authorized by any other teachers to enter into any agreement on their behalf, there is no basis for concluding that his terse statement during the public meeting constituted negotiation with the board. Although his views were not consistent with those of the union, communicating Page 429 U. S. 168 such views to the employer could not change the fact that the union alone was authorized to negotiate and enter into a contract with the board. P. 429 U. S. 174.(b) Moreover, since the board meeting was open to the public, the nonunion teacher addressed the board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government. Where the board has so opened a forum for direct citizen involvement, it may not exclude teachers who make up the overwhelming proportion of school employees and are most concerned with the proceedings. Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, under the First Amendment, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech. Pp. 429 U. S. 174-176.2. The WERC's order, being designed to govern speech and conduct in the future, and not merely to punish past conduct, is an improper prior restraint on teachers' expressions to the board on matters involving the operation of schools. Pp. 429 U. S. 176-177.69 Wis.2d 200, 231 N.W.2d 206, reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 429 U. S. 177. STEWART, J., filed an opinion concurring in the judgment, post, p. 429 U. S. 180. Page 429 U. S. 169 |
376 | 1983_83-271 | JUSTICE STEVENS delivered the opinion of the Court.The University of Oklahoma and the University of Georgia contend that the National Collegiate Athletic Association has unreasonably restrained trade in the televising of college football games. After an extended trial, the District Court found that the NCAA had violated § 1 of the Sherman Act, [Footnote 1] and granted injunctive relief. 546 F. Supp. 1276 (WD Okla.1982). The Court of Appeals agreed that the statute had been violated, but modified the remedy in some respects. 707 F.2d 1147 (CA10 1983). We granted certiorari, 464 U.S. 913 (1983), and now affirm.IThe NCAASince its inception in 1905, the NCAA has played an important role in the regulation of amateur collegiate sports. It has adopted and promulgated playing rules, standards of amateurism, standards for academic eligibility, regulations concerning recruitment of athletes, and rules governing the size of athletic squads and coaching staffs. In some sports, such as baseball, swimming, basketball, wrestling, and track, it has sponsored and conducted national tournaments. It has not done so in the sport of football, however. With the Page 468 U. S. 89 exception of football, the NCAA has not undertaken any regulation of the televising of athletic events. [Footnote 2]The NCAA has approximately 850 voting members. The regular members are classified into separate divisions to reflect differences in size and scope of their athletic programs. Division I includes 276 colleges with major athletic programs; in this group, only 187 play intercollegiate football. Divisions II and III include approximately 500 colleges with less extensive athletic programs. Division I has been subdivided into Divisions I-A and I-AA for football.Some years ago, five major conferences, together with major football-playing independent institutions, organized the College Football Association (CFA). The original purpose of the CFA was to promote the interests of major football-playing schools within the NCAA structure. The Universities of Oklahoma and Georgia, respondents in this Court, are members of the CFA.History of the NCAA Television PlanIn 1938, the University of Pennsylvania televised one of its home games. [Footnote 3] From 1940 through the 1950 season, all of Pennsylvania's home games were televised. App. 303. That was the beginning of the relationship between television and college football.On January 11, 1951, a three-person "Television Committee," appointed during the preceding year, delivered a report to the NCAA's annual convention in Dallas. Based on preliminary surveys, the committee had concluded that"television does have an adverse effect on college football attendance, and, unless brought under some control, threatens to seriously harm the nation's overall athletic and physical Page 468 U. S. 90 system."Id. at 265. The report emphasized that "the television problem is truly a national one, and requires collective action by the colleges." Id. at 270. As a result, the NCAA decided to retain the National Opinion Research Center (NORC) to study the impact of television on live attendance, and to declare a moratorium on the televising of football games. A television committee was appointed to implement the decision and to develop an NCAA television plan for 1951. Id. at 277-278.The committee's 1951 plan provided that only one game a week could be telecast in each area, with a total blackout on 3 of the 10 Saturdays during the season. A team could appear on television only twice during a season. The plan also provided that the NORC would conduct a systematic study of the effects of the program on attendance. Id. at 279. The plan received the virtually unanimous support of the NCAA membership; only the University of Pennsylvania challenged it. Pennsylvania announced that it would televise all its home games. The council of the NCAA thereafter declared Pennsylvania a member in bad standing, and the four institutions scheduled to play at Pennsylvania in 1951 refused to do so. Pennsylvania then reconsidered its decision and abided by the NCAA plan. Id. at 280-281.During each of the succeeding five seasons, studies were made which tended to indicate that television had an adverse effect on attendance at college football games. During those years, the NCAA continued to exercise complete control over the number of games that could be televised. Id. at 325-359.From 1952 through 1977, the NCAA television committee followed essentially the same procedure for developing its television plans. It would first circulate a questionnaire to the membership and then use the responses as a basis for formulating a plan for the ensuing season. The plan was then submitted to a vote by means of a mail referendum. Once approved, the plan formed the basis for NCAA's negotiations Page 468 U. S. 91 with the networks. Throughout this period, the plans retained the essential purposes of the original plan. See 546 F. Supp. at 1283. [Footnote 4] Until 1977, the contracts were all for either 1- or 2-year terms. In 1977, the NCAA adopted "principles of negotiation" for the future, and discontinued the practice of submitting each plan for membership approval. Then the NCAA also entered into its first 4-year contract granting exclusive rights to the American Broadcasting Cos. (ABC) for the 1978-1981 seasons. ABC had held the exclusive rights to network telecasts of NCAA football games since 1965. Id. at 1283-1284.The Current PlanThe plan adopted in 1981 for the 1982-1985 seasons is at issue in this case. [Footnote 5] This plan, like each of its predecessors, recites that it is intended to reduce, insofar as possible, the adverse effects of live television upon football game attendance. [Footnote 6] It provides that "all forms of television of the football Page 468 U. S. 92 games of NCAA member institutions during the Plan control periods shall be in accordance with this Plan." App. 35. The plan recites that the television committee has awarded rights to negotiate and contract for the telecasting of college football games of members of the NCAA to two "carrying networks." Id. at 36. In addition to the principal award of rights to the carrying networks, the plan also describes rights for a "supplementary series" that had been awarded for the 1982 and 1983 seasons, [Footnote 7] as well as a procedure for permitting specific "exception telecasts." [Footnote 8]In separate agreements with each of the carrying networks, ABC and the Columbia Broadcasting System (CBS), the NCAA granted each the right to telecast the 14 live "exposures" described in the plan, in accordance with the "ground rules" set forth therein. [Footnote 9] Each of the networks agreed to pay a specified "minimum aggregate compensation Page 468 U. S. 93 to the participating NCAA member institutions" during the 4-year period in an amount that totaled $131,750,000. In essence, the agreement authorized each network to negotiate directly with member schools for the right to televise their games. The agreement itself does not describe the method of computing the compensation for each game, but the practice that has developed over the years, and that the District Court found would be followed under the current agreement, involved the setting of a recommended fee by a representative of the NCAA for different types of telecasts, with national telecasts being the most valuable, regional telecasts being less valuable, and Division II or Division III games commanding a still lower price. [Footnote 10] The aggregate of all these payments presumably equals the total minimum aggregate compensation set forth in the basic agreement. Except for differences in payment between national and regional telecasts, and with respect to Division II and Division III games, the amount that any team receives does not change with the size of the viewing audience, the number of markets in which the game is telecast, or the particular characteristic of the game or the participating teams. Instead, the "ground rules" provide that the carrying networks make alternate selections of those games they wish to televise, and thereby obtain the exclusive right to submit a bid at an essentially fixed price to the institutions involved. See 546 F. Supp. at 1289-1293. [Footnote 11] Page 468 U. S. 94The plan also contains "appearance requirements" and "appearance limitations" which pertain to each of the 2-year periods that the plan is in effect. The basic requirement imposed on each of the two networks is that it must schedule appearances for at least 82 different member institutions during each 2-year period. Under the appearance limitations, no member institution is eligible to appear on television more than a total of six times and more than four times nationally, with the appearances to be divided equally between the two carrying networks. See id. at 1293. The number of exposures specified in the contracts also sets an absolute maximum on the number of games that can be broadcast.Thus, although the current plan is more elaborate than any of its predecessors, it retains the essential features of each of them. It limits the total amount of televised intercollegiate football and the number of games that any one team may televise. No member is permitted to make any sale of television rights except in accordance with the basic plan.Background of this ControversyBeginning in 1979, CFA members began to advocate that colleges with major football programs should have a greater voice in the formulation of football television policy than they had in the NCAA. CFA therefore investigated the possibility of negotiating a television agreement of its own, developed Page 468 U. S. 95 an independent plan, and obtained a contract offer from the National Broadcasting Co. (NBC). This contract, which it signed in August, 1981, would have allowed a more liberal number of appearances for each institution, and would have increased the overall revenues realized by CFA members. See id. at 1286.In response, the NCAA publicly announced that it would take disciplinary action against any CFA member that complied with the CFA-NBC contract. The NCAA made it clear that sanctions would not be limited to the football programs of CFA members, but would apply to other sports as well. On September 8, 1981, respondents commenced this action in the United States District Court for the Western District of Oklahoma and obtained a preliminary injunction preventing the NCAA from initiating disciplinary proceedings or otherwise interfering with CFA's efforts to perform its agreement with NBC. Notwithstanding the entry of the injunction, most CFA members were unwilling to commit themselves to the new contractual arrangement with NBC in the face of the threatened sanctions, and therefore the agreement was never consummated. See id. at 1286-1287.Decision of the District CourtAfter a full trial, the District Court held that the controls exercised by the NCAA over the televising of college football games violated the Sherman Act. The District Court defined the relevant market as "live college football television" because it found that alternative programming has a significantly different and lesser audience appeal. Id. at 1297-1300. [Footnote 12] The District Court then concluded that the NCAA Page 468 U. S. 96 controls over college football are those of a "classic cartel" with an"almost absolute control over the supply of college football which is made available to the networks, to television advertisers, and ultimately to the viewing public. Like all other cartels, NCAA members have sought and achieved a price for their product which is, in most instances, artificially high. The NCAA cartel imposes production limits on its members, and maintains mechanisms for punishing cartel members who seek to stray from these production quotas. The cartel has established a uniform price for the products of each of the member producers, with no regard for the differing quality of these products or the consumer demand for these various products."Id. at 1300-1301.The District Court found that competition in the relevant market had been restrained in three ways: (1) NCAA fixed the price for particular telecasts; (2) its exclusive network contracts were tantamount to a group boycott of all other potential broadcasters and its threat of sanctions against its own members constituted a threatened boycott of potential competitors; and (3) its plan placed an artificial limit on the production of televised college football. Id. at 1293-1295.In the District Court, the NCAA offered two principal justifications for its television policies: that they protected the gate attendance of its members and that they tended to preserve a competitive balance among the football programs of the various schools. The District Court rejected the first justification because the evidence did not support the claim that college football television adversely affected gate attendance. Id. at 1295-1296. With respect to the "competitive balance" argument, the District Court found that the evidence failed to show that the NCAA regulations on matters such as recruitment and the standards for preserving amateurism were not sufficient to maintain an appropriate balance. Id. at 1296. Page 468 U. S. 97 Decision of the Court of AppealsThe Court of Appeals held that the NCAA television plan constituted illegal per se price-fixing, 707 F.2d at 1152. [Footnote 13] It rejected each of the three arguments advanced by NCAA to establish the procompetitive character of its plan. [Footnote 14] First, the court rejected the argument that the television plan promoted live attendance, noting that, since the plan involved a concomitant reduction in viewership, the plan did not result in a net increase in output, and hence was not procompetitive. Id. at 1153-1154. Second, the Court of Appeals rejected as illegitimate the NCAA's purpose of promoting athletically balanced competition. It held that such a consideration amounted to an argument that "competition will destroy the market" -- a position inconsistent with the policy of the Sherman Act. Moreover, assuming arguendo that the justification was legitimate, the court agreed with the District Court's finding "that any contribution the plan made to athletic balance could be achieved by less restrictive means." Id. at 1154. Third, the Court of Appeals refused to view the NCAA plan as competitively justified by the need to compete effectively with other types of television programming, since it entirely eliminated competition between producers of football, and hence was illegal per se. Id. at 1155-1156.Finally, the Court of Appeals concluded that, even if the television plan were not per se illegal, its anticompetitive limitation on price and output was not offset by any Page 468 U. S. 98 procompetitive justification sufficient to save the plan even when the totality of the circumstances was examined. Id. at 1157-1160. [Footnote 15] The case was remanded to the District Court for an appropriate modification in its injunctive decree. Id. at 1162. [Footnote 16]IIThere can be no doubt that the challenged practices of the NCAA constitute a "restraint of trade" in the sense that they limit members' freedom to negotiate and enter into their own television contracts. In that sense, however, every contract is a restraint of trade, and as we have repeatedly recognized, the Sherman Act was intended to prohibit only unreasonable restraints of trade. [Footnote 17] Page 468 U. S. 99It is also undeniable that these practices share characteristics of restraints we have previously held unreasonable. The NCAA is an association of schools which compete against each other to attract television revenues, not to mention fans and athletes. As the District Court found, the policies of the NCAA with respect to television rights are ultimately controlled by the vote of member institutions. By participating in an association which prevents member institutions from competing against each other on the basis of price or kind of television rights that can be offered to broadcasters, the NCAA member institutions have created a horizontal restraint -- an agreement among competitors on the way in which they will compete with one another. [Footnote 18] A restraint of this type has often been held to be unreasonable as a matter of law. Because it places a ceiling on the number of games member institutions may televise, the horizontal agreement places an artificial limit on the quantity of televised football that is available to broadcasters and consumers. By restraining the quantity of television rights available for sale, the challenged practices create a limitation on output; our cases have held that such limitations are unreasonable restraints of trade. [Footnote 19] Moreover, the District Court found that the minimum aggregate price in fact operates to preclude any price negotiation between broadcasters and institutions, Page 468 U. S. 100 thereby constituting horizontal price-fixing, perhaps the paradigm of an unreasonable restraint of trade. [Footnote 20]Horizontal price-fixing and output limitation are ordinarily condemned as a matter of law under an "illegal per se" approach, because the probability that these practices are anticompetitive is so high; a per se rule is applied when "the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output." Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1, 441 U. S. 19-20 (1979). In such circumstances a restraint is presumed unreasonable without inquiry into the particular market context in which it is found. Nevertheless, we have decided that it would be inappropriate to apply a per se rule to this case. This decision is not based on a lack of judicial experience with this type of arrangement, [Footnote 21] on the fact that the NCAA is organized as a nonprofit entity, [Footnote 22] or on Page 468 U. S. 101 our respect for the NCAA's historic role in the preservation and encouragement of intercollegiate amateur athletics. [Footnote 23] Rather, what is critical is that this case involves an industry in which horizontal restraints on competition are essential if the product is to be available at all.As Judge Bork has noted:"[S]ome activities can only be carried out jointly. Perhaps the leading example is league sports. When a league of professional lacrosse teams is formed, it would be pointless to declare their cooperation illegal on the ground that there are no other professional lacrosse teams."R. Bork, The Antitrust Paradox 278 (1978). What the NCAA and its member institutions market in this case is competition itself -- contests between competing institutions. Of course, this would be completely ineffective if there were no rules on which the competitors agreed to create and define the competition to be marketed. A myriad of rules affecting such matters as the size of the field, the number of players on a team, and the extent to which physical violence is to be encouraged or proscribed, all must be agreed upon, and all restrain the manner in which institutions compete. Moreover, the NCAA seeks to market a particular brand of football -- college football. The identification of this "product" with an academic tradition differentiates Page 468 U. S. 102 college football from and makes it more popular than professional sports to which it might otherwise be comparable, such as, for example, minor league baseball. In order to preserve the character and quality of the "product," athletes must not be paid, must be required to attend class, and the like. And the integrity of the "product" cannot be preserved except by mutual agreement; if an institution adopted such restrictions unilaterally, its effectiveness as a competitor on the playing field might soon be destroyed. Thus, the NCAA plays a vital role in enabling college football to preserve its character, and as a result enables a product to be marketed which might otherwise be unavailable. In performing this role, its actions widen consumer choice -- not only the choices available to sports fans but also those available to athletes -- and hence can be viewed as procompetitive. [Footnote 24] Page 468 U. S. 103Broadcast Music squarely holds that a joint selling arrangement may be so efficient that it will increase sellers' aggregate output, and thus be procompetitive. See 441 U.S. at 441 U. S. 18-23. Similarly, as we indicated in Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 433 U. S. 51-57 (1977), a restraint in a limited aspect of a market may actually enhance market-wide competition. Respondents concede that the great majority of the NCAA's regulations enhance competition among member institutions. Thus, despite the fact that this case involves restraints on the ability of member institutions to compete in terms of price and output, a fair evaluation of their competitive character requires consideration of the NCAA's justifications for the restraints.Our analysis of this case under the Rule of Reason, of course, does not change the ultimate focus of our inquiry. Both per se rules and the Rule of Reason are employed "to form a judgment about the competitive significance of the restraint." National Society of Professional Engineers v. United States, 435 U. S. 679, 435 U. S. 692 (1978). A conclusion that a restraint of trade is unreasonable may be"based either (1) on the nature or character of the contracts, or (2) on surrounding circumstances giving rise to the inference or presumption that they were intended to restrain trade and enhance prices. Under either branch of the test, the inquiry is confined to a consideration of impact on competitive conditions."Id. at 435 U. S. 690 (footnotes omitted).Per se rules are invoked when surrounding circumstances make the likelihood of anticompetitive conduct so great as to Page 468 U. S. 104 render unjustified further examination of the challenged conduct. [Footnote 25] But whether the ultimate finding is the product of a presumption or actual market analysis, the essential inquiry remains the same -- whether or not the challenged restraint enhances competition. [Footnote 26] Under the Sherman Act, the criterion to be used in judging the validity of a restraint on trade is its impact on competition. [Footnote 27]IIIBecause it restrains price and output, the NCAA's television plan has a significant potential for anticompetitive effects. [Footnote 28] The findings of the District Court indicate that this Page 468 U. S. 105 potential has been realized. The District Court found that, if member institutions were free to sell television rights, many more games would be shown on television, and that the NCAA's output restriction has the effect of raising the price the networks pay for television rights. [Footnote 29] Moreover, the Page 468 U. S. 106 court found that by fixing a price for television rights to all games, the NCAA creates a price structure that is unresponsive to viewer demand and unrelated to the prices that would prevail in a competitive market. [Footnote 30] And, of course, since, as a practical matter, all member institutions need NCAA approval, members have no real choice but to adhere to the NCAA's television controls. [Footnote 31]The anticompetitive consequences of this arrangement are apparent. Individual competitors lose their freedom to compete. [Footnote 32] Page 468 U. S. 107 Price is higher and output lower than they would otherwise be, and both are unresponsive to consumer preference. [Footnote 33] This latter point is perhaps the most significant, since "Congress designed the Sherman Act as a consumer welfare prescription.'" Reiter v. Sonotone Corp., 442 U. S. 330, 442 U. S. 343 (1979). A restraint that has the effect of reducing the importance of consumer preference in setting price and output is not consistent with this fundamental goal of antitrust law. [Footnote 34] Restrictions on price and output are the paradigmatic examples of restraints of trade that the Sherman Page 468 U. S. 108 Act was intended to prohibit. See Standard Oil Co. v. United States, 221 U. S. 1, 221 U. S. 52-60 (1911). [Footnote 35] At the same time, the television plan eliminates competitors from the market, since only those broadcasters able to bid on television rights covering the entire NCAA can compete. [Footnote 36] Thus, as the District Court found, many telecasts that would occur in a competitive market are foreclosed by the NCAA's plan. [Footnote 37] Page 468 U. S. 109Petitioner argues, however, that its television plan can have no significant anticompetitive effect, since the record indicates that it has no market power -- no ability to alter the interaction of supply and demand in the market. [Footnote 38] We must reject this argument for two reasons, one legal, one factual.As a matter of law, the absence of proof of market power does not justify a naked restriction on price or output. To the contrary, when there is an agreement not to compete in terms of price or output, "no elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement." Professional Engineers, 435 U.S. at 435 U. S. 692. [Footnote 39] Petitioner does not quarrel with the District Court's Page 468 U. S. 110 finding that price and output are not responsive to demand. Thus, the plan is inconsistent with the Sherman Act's command that price and supply be responsive to consumer preference. [Footnote 40] We have never required proof of market power in such a case. [Footnote 41] This naked restraint on price and output requires some competitive justification even in the absence of a detailed market analysis. [Footnote 42] Page 468 U. S. 111As a factual matter, it is evident that petitioner does possess market power. The District Court employed the correct test for determining whether college football broadcasts constitute a separate market -- whether there are other products that are reasonably substitutable for televised NCAA football games. [Footnote 43] Petitioner's argument that it cannot obtain supracompetitive prices from broadcasters since advertisers, and hence broadcasters, can switch from college football to other types of programming simply ignores the findings of the District Court. It found that intercollegiate football telecasts generate an audience uniquely attractive to advertisers, and that competitors are unable to offer programming that can attract a similar audience. [Footnote 44] These findings amply support its conclusion that the NCAA possesses market power. [Footnote 45] Indeed, the District Court's subsidiary finding that advertisers will pay a premium price per viewer to reach audiences watching college football because of their demographic characteristics [Footnote 46] is vivid evidence of the uniqueness of this product. [Footnote 47] Moreover, the District Court's market Page 468 U. S. 112 analysis is firmly supported by our decision in International Boxing Club of New York, Inc. v. United States, 358 U. S. 242 (1959), that championship boxing events are uniquely attractive to fans, [Footnote 48] and hence constitute a market separate from that for nonchampionship events. See id. at 358 U. S. 249-252. [Footnote 49] Thus, respondents have demonstrated that there is a separate market for telecasts of college football which "rest[s] on generic qualities differentiating" viewers. Times-Picayune Publishing Co. v. United States, 345 U. S. 594, 345 U. S. 613 (1953). It inexorably follows that, if college football broadcasts be defined as a separate market -- and we are convinced they are -- then the NCAA's complete control over those broadcasts provides a solid basis for the District Court's conclusion that the NCAA possesses market power with respect to those broadcasts. "When a product is controlled by one interest, without substitutes available in the market, there is monopoly power." United States v. E. I. du Pont de Nemours & Co., 351 U. S. 377, 351 U.S. 394 (1956). [Footnote 50] Page 468 U. S. 113Thus, the NCAA television plan, on its face, constitutes a restraint upon the operation of a free market, and the findings of the District Court establish that it has operated to raise prices and reduce output. Under the Rule of Reason, these hallmarks of anticompetitive behavior place upon petitioner a heavy burden of establishing an affirmative defense which competitively justifies this apparent deviation from the operations of a free market. See Professional Engineers, 435 U.S. at 435 U. S. 692-696. We turn now to the NCAA's proffered justifications.IVRelying on Broadcast Music, petitioner argues that its television plan constitutes a cooperative "joint venture" which assists in the marketing of broadcast rights, and hence is procompetitive. While joint ventures have no immunity from the antitrust laws, [Footnote 51] as Broadcast Music indicates, a joint selling arrangement may "mak[e] possible a new product by reaping otherwise unattainable efficiencies." Arizona v. Maricopa County Medical Society, 457 U. S. 332, 457 U. S. 365 (1982) (POWELL, J., dissenting) (footnote omitted). The essential contribution made by the NCAA's arrangement is to define the number of games that may be televised, to establish the price for each exposure, and to define the basic terms of each contract between the network and a home team. The NCAA does not, however, act as a selling agent for any school or for any conference of schools. The selection of individual games, and the negotiation of particular agreements, are matters left to the networks and the individual schools. Thus, the effect of the network plan is not to eliminate individual sales of broadcasts, since these still occur, albeit subject to fixed prices and output limitations. Unlike Broadcast Music's blanket license covering broadcast rights Page 468 U. S. 114 to a large number of individual compositions, here the same rights are still sold on an individual basis, only in a noncompetitive market.The District Court did not find that the NCAA's television plan produced any procompetitive efficiencies which enhanced the competitiveness of college football television rights; to the contrary, it concluded that NCAA football could be marketed just as effectively without the television plan. [Footnote 52] There is therefore no predicate in the findings for petitioner's efficiency justification. Indeed, petitioner's argument is refuted by the District Court's finding concerning price and output. If the NCAA's television plan produced procompetitive efficiencies, the plan would increase output and reduce the price of televised games. The District Court's contrary findings accordingly undermine petitioner's position. In light of these findings, it cannot be said that "the agreement on price is necessary to market the product at all." Broadcast Music, 441 U.S. at 441 U. S. 23. [Footnote 53] In Broadcast Music, the availability of a package product that no individual could offer enhanced the total volume of music that was sold. Unlike this case, there was no limit of any kind placed on the volume that might be sold in the entire market and each individual remained free to sell his own music without restraint. Here, production has been limited not enhanced. [Footnote 54] Page 468 U. S. 115 No individual school is free to televise its own games without restraint. The NCAA's efficiency justification is not supported by the record.Neither is the NCAA's television plan necessary to enable the NCAA to penetrate the market through an attractive package sale. Since broadcasting rights to college football constitute a unique product for which there is no ready substitute, there is no need for collective action in order to enable the product to compete against its nonexistent competitors. [Footnote 55] This is borne out by the District Court's finding that the NCAA's television plan reduces the volume of television rights sold.VThroughout the history of its regulation of intercollegiate football telecasts, the NCAA has indicated its concern with protecting live attendance. This concern, it should be noted, is not with protecting live attendance at games which are shown on television; that type of interest is not at issue in this case. Rather, the concern is that fan interest in a televised game may adversely affect ticket sales for games that will not appear on television. [Footnote 56]Although the NORC studies in the 1950's provided some support for the thesis that live attendance would suffer if Page 468 U. S. 116 unlimited television were permitted, [Footnote 57] the District Court found that there was no evidence to support that theory in today's market. [Footnote 58] Moreover, as the District Court found, the television plan has evolved in a manner inconsistent with its original design to protect gate attendance. Under the current plan, games are shown on television during all hours that college football games are played. The plan simply does not protect live attendance by ensuring that games will not be shown on television at the same time as live events. [Footnote 59]There is, however, a more fundamental reason for rejecting this defense. The NCAA's argument that its television plan is necessary to protect live attendance is not based on a desire to maintain the integrity of college football as a distinct and attractive product, but rather on a fear that the product will not prove sufficiently attractive to draw live attendance when faced with competition from televised games. At bottom the NCAA's position is that ticket sales for most college games are unable to compete in a free market. [Footnote 60] The Page 468 U. S. 117 television plan protects ticket sales by limiting output -- just as any monopolist increases revenues by reducing output. By seeking to insulate live ticket sales from the full spectrum of competition because of its assumption that the product itself is insufficiently attractive to consumers, petitioner forwards a justification that is inconsistent with the basic policy of the Sherman Act. "[T]he Rule of Reason does not support a defense based on the assumption that competition itself is unreasonable." Professional Engineers, 435 U.S. at 435 U. S. 696.VIPetitioner argues that the interest in maintaining a competitive balance among amateur athletic teams is legitimate and important, and that it justifies the regulations challenged in this case. We agree with the first part of the argument, but not the second.Our decision not to apply a per se rule to this case rests in large part on our recognition that a certain degree of cooperation is necessary if the type of competition that petitioner and its member institutions seek to market is to be preserved. [Footnote 61] It is reasonable to assume that most of the regulatory controls of the NCAA are justifiable means of fostering competition among amateur athletic teams, and therefore procompetitive because they enhance public interest in intercollegiate athletics. The specific restraints on football telecasts that are challenged in this case do not, however, fit into the same mold as do rules defining the conditions of the contest, the eligibility of participants, or the manner in which members of a joint enterprise shall share the responsibilities and the benefits of the total venture.The NCAA does not claim that its television plan has equalized or is intended to equalize competition within any Page 468 U. S. 118 one league. [Footnote 62] The plan is nationwide in scope, and there is no single league or tournament in which all college football teams compete. There is no evidence of any intent to equalize the strength of teams in Division I-A with those in Division II or Division III, and not even a colorable basis for giving colleges that have no football program at all a voice in the management of the revenues generated by the football programs at other schools. [Footnote 63] The interest in maintaining a competitive balance that is asserted by the NCAA as a justification for regulating all television of intercollegiate football is not related to any neutral standard or to any readily identifiable group of competitors. Page 468 U. S. 119The television plan is not even arguably tailored to serve such an interest. It does not regulate the amount of money that any college may spend on its football program, nor the way in which the colleges may use the revenues that are generated by their football programs, whether derived from the sale of television rights, the sale of tickets, or the sale of concessions or program advertising. [Footnote 64] The plan simply imposes a restriction on one source of revenue that is more important to some colleges than to others. There is no evidence that this restriction produces any greater measure of equality throughout the NCAA than would a restriction on alumni donations, tuition rates, or any other revenue-producing activity. At the same time, as the District Court found, the NCAA imposes a variety of other restrictions designed to preserve amateurism which are much better tailored to the goal of competitive balance than is the television plan, and which are "clearly sufficient" to preserve competitive balance to the extent it is within the NCAA's power to do so. [Footnote 65] And much more than speculation supported the District Court's findings on this score. No other NCAA sport employs a similar plan, and in particular the court found that, in the most closely analogous sport, college basketball, competitive balance has been maintained without resort to a restrictive television plan. [Footnote 66]Perhaps the most important reason for rejecting the argument that the interest in competitive balance is served by the television plan is the District Court's unambiguous and well-supported finding that many more games would be televised in a free market than under the NCAA plan. The hypothesis that legitimates the maintenance of competitive balance as a procompetitive justification under the Rule of Page 468 U. S. 120 Reason is that equal competition will maximize consumer demand for the product. [Footnote 67] The finding that consumption will materially increase if the controls are removed is a compelling demonstration that they do not, in fact, serve any such legitimate purpose. [Footnote 68]VIIThe NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports. There can be no question but that it needs ample latitude to play that role, or that the preservation of the student athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of the Sherman Act. But consistent with the Sherman Act, the role of the NCAA must be to preserve a tradition that might otherwise die; rules that restrict output are hardly consistent with this role. Today we hold only that the record supports the District Court's conclusion that, by curtailing output and blunting the ability of member institutions to respond to consumer preference, the NCAA has restricted, rather than enhanced, the place of intercollegiate athletics in the Nation's life. Accordingly, the judgment of the Court of Appeals isAffirmed | U.S. Supreme CourtNCAA v. Board of Regents, 468 U.S. 85 (1984)National Collegiate Athletic Association v. Board of Regentsof the University of OklahomaNo. 83-271Argued March 20, 1984Decided June 2, 1984468 U.S. 85SyllabusIn 1981, petitioner National Collegiate Athletic Association (NCAA) adopted a plan for the televising of college football games of its member institutions for the 1982-1985 seasons. The plan recites that it is intended to reduce the adverse effect of live television upon football game attendance. The plan limits the total amount of televised intercollegiate football games and the number of games that any one college may televise, and no member of the NCAA is permitted to make any sale of television rights except in accordance with the plan. The NCAA has separate agreements with the two carrying networks, the American Broadcasting Cos. and the Columbia Broadcasting System, granting each network the right to telecast the live "exposures" described in the plan. Each network agreed to pay a specified "minimum aggregate compensation" to the participating NCAA members, and was authorized to negotiate directly with the members for the right to televise their games. Respondent Universities, in addition to being NCAA members, are members of the College Football Association (CFA), which was originally organized to promote the interests of major football-playing colleges within the NCAA structure, but whose members eventually claimed that they should have a greater voice in the formulation of football television policy than they had in the NCAA. The CFA accordingly negotiated a contract with the National Broadcasting Co. that would have allowed a more liberal number of television appearances for each college and would have increased the revenues realized by CFA members. In response, the NCAA announced that it would take disciplinary action against any CFA member that complied with the CFA-NBC contract. Respondents then commenced an action in Federal District Court, which, after an extended trial, held that the controls exercised by the NCAA over the televising of college football games violated § 1 of the Sherman Act, and accordingly granted injunctive relief. The court found that competition in the relevant market -- defined as "live college football television" -- had been restrained in three ways: (1) the NCAA fixed the price for particular telecasts; (2) its exclusive network contracts were tantamount to a group boycott of all other potential broadcasters Page 468 U. S. 86 and its threat of sanctions against its members constituted a threatened boycott of potential competitors; and (3) its plan placed an artificial limit on the production of televised college football. The Court of Appeals agreed that the Sherman Act had been violated, holding that the NCAA's television plan constituted illegal per se price-fixing, and that, even if it were not per se illegal, its anticompetitive limitation on price and output was not offset by any procompetitive justifications sufficient to save the plan, even when the totality of the circumstances was examined.Held: The NCAA's television plan violates § 1 of the Sherman Act. Pp. 468 U. S. 98-120.(a) While the plan constitutes horizontal price-fixing and output limitation, restraints that ordinarily would be held "illegal per se," it would be inappropriate to apply a per se rule in this case where it involves an industry in which horizontal restraints on competition are essential if the product is to be available at all. The NCAA and its members market competition itself -- contests between competing institutions. Thus, despite the fact that restraints on the ability of NCAA members to compete in terms of price and output are involved, a fair evaluation of their competitive character requires consideration, under the Rule of Reason, of the NCAA's justifications for the restraints. But an analysis under the Rule of Reason does not change the ultimate focus of the inquiry, which is whether or not the challenged restraints enhance competition. Pp. 468 U. S. 98-104.(b) The NCAA television plan, on its face, constitutes a restraint upon the operation of a free market, and the District Court's findings establish that the plan has operated to raise price and reduce output, both of which are unresponsive to consumer preference. Under the Rule of Reason, these hallmarks of anticompetitive behavior place upon the NCAA a heavy burden of establishing an affirmative defense that competitively justifies this apparent deviation from the operations of a free market. The NCAA's argument that its television plan can have no significant anticompetitive effect, since it has no market power, must be rejected. As a matter of law, the absence of proof of market power does not justify a naked restriction on price or output, and, as a factual matter, it is evident from the record that the NCAA does possess market power. Pp. 468 U. S. 104-113.(c) The record does not support the NCAA's proffered justification for its television plan that it constitutes a cooperative "joint venture" which assists in the marketing of broadcast rights, and hence is procompetitive. The District Court's contrary findings undermine such a justification. Pp. 468 U. S. 113-115.(d) Nor, contrary to the NCAA's assertion, does the television plan protect live attendance, since, under the plan, games are televised during Page 468 U. S. 87 all hours that college football games are played. Moreover, by seeking to insulate live ticket sales from the full spectrum of competition because of its assumption that the product itself is insufficiently attractive to draw live attendance when faced with competition from televised games, the NCAA forwards a justification that is inconsistent with the Sherman Act's basic policy. "The Rule of Reason does not support a defense based on the assumption that competition itself is unreasonable." National Society of Professional Engineers v. United States, 435 U. S. 679, 435 U. S. 696. Pp. 468 U. S. 115-117.(e) The interest in maintaining a competitive balance among amateur athletic teams that the NCAA asserts as a further justification for its television plan is not related to any neutral standard or to any readily identifiable group of competitors. The television plan is not even arguably tailored to serve such an interest. It does not regulate the amount of money that any college may spend on its football program or the way the colleges may use their football program revenues, but simply imposes a restriction on one source of revenue that is more important to some colleges than to others. There is no evidence that such restriction produces any greater measure of equality throughout the NCAA than would a restriction on alumni donations, tuition rates, or any other revenue-producing activity. Moreover, the District Court's well-supported finding that many more games would be televised in a free market than under the NCAA plan is a compelling demonstration that the plan's controls do not serve any legitimate procompetitive purpose. Pp. 468 U. S. 117-120.707 F.2d 1147, affirmed.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 468 U. S. 120. Page 468 U. S. 88 |
377 | 1985_84-1913 | JUSTICE WHITE delivered the opinion of the Court.The issue presented in this case is whether a court asked to order arbitration of a grievance filed under a collective bargaining agreement must first determine that the parties intended to arbitrate the dispute, or whether that determination is properly left to the arbitrator.IAT&T Technologies, Inc. (AT&T or the Company), and the Communications Workers of America (the Union) are parties to a collective bargaining agreement which covers telephone equipment installation workers. Article 8 of this agreement Page 475 U. S. 645 establishes that "differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder" must be referred to a mutually agreeable arbitrator upon the written demand of either party. This Article expressly does not cover disputes "excluded from arbitration by other provisions of this contract." [Footnote 1] Article 9 provides that, "subject to the limitations contained in the provisions of this contract, but otherwise not subject to the provisions of the arbitration clause," AT&T is free to exercise certain management functions, including the hiring and placement of employees and the termination of employment. [Footnote 2] "When lack of work necessitates Layoff," Article 20 prescribes the order in which employees are to be laid off. [Footnote 3]On September 17, 1981, the Union filed a grievance challenging AT&T's decision to lay off 79 installers from its Chicago base location. The Union claimed that, because there was no lack of work at the Chicago location, the Page 475 U. S. 646 planned layoffs would violate Article 20 of the agreement. Eight days later, however, AT&T laid off all 79 workers, and soon thereafter, the Company transferred approximately the same number of installers from base locations in Indiana and Wisconsin to the Chicago base. AT&T refused to submit the grievance to arbitration on the ground that, under Article 9, the Company's decision to lay off workers when it determines that a lack of work exists in a facility is not arbitrable.The Union then sought to compel arbitration by filing suit in federal court pursuant to § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). [Footnote 4] Communications Workers of America v. Western Electric Co., No. 82 C 772 (ND Ill., Nov. 18, 1983). Ruling on cross-motions for summary judgment, the District Court reviewed the provisions of Articles 8, 9, and 20, and set forth the parties' arguments as follows:"Plaintiffs interpret Article 20 to require that there be an actual lack of work prior to employee layoffs, and argue that there was no such lack of work in this case. Under plaintiffs' interpretation, Article 20 would allow the union to take to arbitration the threshold issue of whether the layoffs were justified by a lack of work. Defendant interprets Article 20 as merely providing a sequence for any layoffs which management, in its exclusive judgment, determines are necessary. Under defendant's interpretation, Article 20 would not allow for an arbitrator to decide whether the layoffs were warranted by a lack of work, but only whether the company Page 475 U. S. 647 followed the proper order in laying off the employees."App. to Pet. for Cert. 10A. Finding that "the union's interpretation of Article 20 was at least arguable,'" the court held that it was "for the arbitrator, not the court, to decide whether the union's interpretation has merit," and accordingly ordered the Company to arbitrate. Id. at 11A.The Court of Appeals for the Seventh Circuit affirmed. Communications Workers of America v. Western Electric Co., 751 F.2d 203 (1984). The Court of Appeals understood the District Court to have ordered arbitration of the threshold issue of arbitrability. Id. at 205, n. 4. The court acknowledged the "general rule" that the issue of arbitrability is for the courts to decide unless the parties stipulate otherwise, but noted that this Court's decisions in Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960), and Steelworkers v. American Mfg. Co., 363 U. S. 564 (1960), caution courts to avoid becoming entangled in the merits of a labor dispute under the guise of deciding arbitrability. From this observation, the court announced an "exception" to the general rule, under which"a court should compel arbitration of the arbitrability issue where the collective bargaining agreement contains a standard arbitration clause, the parties have not clearly excluded the arbitrability issue from arbitration, and deciding the issue would entangle the court in interpretation of substantive provisions of the collective bargaining agreement, and thereby involve consideration of the merits of the dispute."751 F.2d at 206.All of these factors were present in this case. Article 8 was a "standard arbitration clause," and there was "no clear, unambiguous exclusion from arbitration of terminations predicated by a lack of work determination." Id. at 206-207. Moreover, although there were "colorable arguments" on both sides of the exclusion issue, if the court were to decide this question, it would have to interpret not only Article 8, but Articles 9 and 20 as well, both of which are "substantive Page 475 U. S. 648 provisions of the Agreement." The court thus "decline[d] the invitation to decide arbitrability," and ordered AT&T "to arbitrate the arbitrability issue." Id. at 207.The court admitted that its exception was "difficult to reconcile with the Supreme Court's discussion of a court's duty to decide arbitrability in [John Wiley & Sons, Inc. v. Livingston,376 U.S. 543 (1964)]." The court asserted, however, that the discussion was "dicta," and that this Court had reopened the issue in Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243, 430 U. S. 255, n. 8 (1977). 751 F.2d at 206.We granted certiorari, 474 U.S. 814 (1985), and now vacate the Seventh Circuit's decision and remand for a determination of whether the Company is required to arbitrate the Union's grievance.IIThe principles necessary to decide this case are not new. They were set out by this Court over 25 years ago in a series of cases known as the Steelworkers Trilogy: Steelworkers v. American Mfg. Co., supra; Steelworkers v. Warrior & Gulf Navigation Co., supra; and Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593 (1960). These precepts have served the industrial relations community well, and have led to continued reliance on arbitration, rather than strikes or lockouts, as the preferred method of resolving disputes arising during the term of a collective bargaining agreement. We see no reason either to question their continuing validity or to eviscerate their meaning by creating an exception to their general applicability.The first principle gleaned from the Trilogy is that"arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit."Warrior & Gulf, supra, at 363 U. S. 582; American Mfg. Co., supra, at 363 U. S. 570-571 (BRENNAN, J., concurring). This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to Page 475 U. S. 649 arbitration. Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 414 U. S. 374 (1974).The second rule, which follows inexorably from the first, is that the question of arbitrability -- whether a collective bargaining agreement creates a duty for the parties to arbitrate the particular grievance -- is undeniably an issue for judicial determination. Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator. Warrior & Gulf, supra, at 363 U. S. 582-583. See Operating Engineers v. Flair Builders, Inc., 406 U. S. 487, 406 U. S. 491 (1972); Atkinson v. Sinclair Refining Co., 370 U. S. 238, 370 U. S. 241 (1962), overruled in part on other grounds, Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970). Accord, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 473 U. S. 626 (1985).The Court expressly reaffirmed this principle in John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543 (1964). The "threshold question" there was whether the court or an arbitrator should decide if arbitration provisions in a collective bargaining contract survived a corporate merger so as to bind the surviving corporation. Id. at 376 U. S. 546. The Court answered that there was "no doubt" that this question was for the courts."'Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties.' . . . The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty."Id. at 376 U. S. 546-547 (citations omitted).The third principle derived from our prior cases is that, in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims. Whether "arguable" or not, indeed even if it appears to the court to be Page 475 U. S. 650 frivolous, the union's claim that the employer has violated the collective bargaining agreement is to be decided not by the court asked to order arbitration, but, as the parties have agreed, by the arbitrator."The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious."American Mfg. Co., 363 U.S. at 363 U. S. 568 (footnote omitted).Finally, it has been established that, where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that"[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage."Warrior & Gulf, 363 U.S. at 363 U. S. 582-583. See also Gateway Coal Co. v. Mine Workers, supra, at 414 U. S. 377-378. Such a presumption is particularly applicable where the clause is as broad as the one employed in this case, which provides for arbitration of "any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder. . . ." In such cases,"[i]n the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail."Warrior & Gulf, supra, at 363 U. S. 584-585.This presumption of arbitrability for labor disputes recognizes the greater institutional competence of arbitrators in interpreting collective bargaining agreements,"furthers the national labor policy of peaceful resolution of labor disputes. and thus best accords with the parties' presumed objectives in pursuing collective bargaining."Schneider Moving & Storage Co. v. Robbins, 466 U. S. 364, 466 U. S. 371-372 (1984) (citation Page 475 U. S. 651 omitted). See Gateway Coal Co., supra, at 414 U. S. 378-379. The willingness of parties to enter into agreements that provide for arbitration of specified disputes would be "drastically reduced," however, if a labor arbitrator had the "power to determine his own jurisdiction. . . ." Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1509 (1959). Were this the applicable rule, an arbitrator would not be constrained to resolve only those disputes that the parties have agreed in advance to settle by arbitration, but, instead, would be empowered "to impose obligations outside the contract limited only by his understanding and conscience." Ibid. This result undercuts the longstanding federal policy of promoting industrial harmony through the use of collective bargaining agreements, and is antithetical to the function of a collective bargaining agreement as setting out the rights and duties of the parties.With these principles in mind, it is evident that the Seventh Circuit erred in ordering the parties to arbitrate the arbitrability question. It is the court's duty to interpret the agreement and to determine whether the parties intended to arbitrate grievances concerning layoffs predicated on a "lack of work" determination by the Company. If the court determines that the agreement so provides, then it is for the arbitrator to determine the relative merits of the parties' substantive interpretations of the agreement. It was for the court, not the arbitrator, to decide in the first instance whether the dispute was to be resolved through arbitration.The Union does not contest the application of these principles to the present case. Instead, it urges the Court to examine the specific provisions of the agreement for itself and to affirm the Court of Appeals on the ground that the parties had agreed to arbitrate the dispute over the layoffs at issue here. But it is usually not our function in the first instance to construe collective bargaining contracts and arbitration clauses, or to consider any other evidence that might unmistakably demonstrate that a particular grievance was not to Page 475 U. S. 652 be subject to arbitration. The issue in the case is whether, because of express exclusion or other forceful evidence, the dispute over the interpretation of Article 20 of the contract, the layoff provision, is not subject to the arbitration clause. That issue should have been decided by the District Court and reviewed by the Court of Appeals; it should not have been referred to the arbitrator.The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings in conformity with this opinion.It is so ordered | U.S. Supreme CourtAT&T Technologies, Inc. v. CWA, 475 U.S. 643 (1986)AT&T Technologies, Inc. v. Communications Workers of AmericaNo. 84-1913Argued January 22, 1986Decided April 7, 1986475 U.S. 643SyllabusPetitioner employer and respondent Union are parties to a collective bargaining agreement covering telephone equipment installation workers. Article 8 of the agreement provides for arbitration of differences arising over interpretation of the agreement. Article 9 provides that, subject to certain limitations, but otherwise not subject to the arbitration clause, petitioner is free to exercise certain management functions, including the hiring, placement, and termination of employees. Article 20 prescribes the order in which employees will be laid off "[w]hen lack of work necessitates Layoff." The Union filed a grievance challenging petitioner's decision to lay off 79 installers from its Chicago location, claiming that there was no lack of work at that location, and that therefore the layoffs would violate Article 20. But petitioner laid off the installers and refused to submit the grievance to arbitration on the ground that, under Article 9, the layoffs were not arbitrable. The Union then sought to compel arbitration by filing suit in Federal District Court, which, after finding that the Union's interpretation of Article 20 was at least "arguable," held that it was for the arbitrator, not the court, to decide whether that interpretation had merit, and, accordingly, ordered petitioner to arbitrate. The Court of Appeals affirmed.Held: The issue whether, because of express exclusion or other evidence, the dispute over interpretation of Article 20 was subject to the arbitration clause should have been decided by the District Court and reviewed by the Court of Appeals, and should not have been referred to the arbitrator. Pp. 475 U. S. 648-657.(a) Under the principles set forth in the Steelworkers Trilogy (Steelworkers v. American Mfg. Co., 363 U. S. 564; Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574; and Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593), it was the District Court's duty to interpret the collective bargaining agreement and to determine whether the parties intended to arbitrate grievances concerning layoffs predicated on a "lack of work" determination by petitioner. If the court should determine that the agreement so provides, then it would be for the arbitrator to determine the relative merits of the parties' substantive interpretations of the agreement. Pp. 475 U. S. 648-651. Page 475 U. S. 644(b) This Court will not examine the collective bargaining agreement for itself and affirm the Court of Appeals on the ground that the parties had agreed to arbitrate the dispute over the layoffs. It is not this Court's function in the first instance to construe collective bargaining agreements and arbitration clauses, or to consider any other evidence that might demonstrate that a particular grievance was not subject to arbitration. Pp. 475 U. S. 651-652.751 F.2d 203, vacated and remanded.WHITE, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring opinion, in which BURGER, C.J., and MARSHALL, J., joined, post, p. 475 U. S. 652. |
378 | 1959_20 | MR. JUSTICE BRENNAN delivered the opinion of the Court.The Government sought an injunction under § 4 of the Sherman Act against the appellee, Parke, Davis & Company, on a compliant alleging that Parke Davis conspired and combined, in violation of §§ 1 and 3 of the Act, [Footnote 1] with Page 362 U. S. 31 retail and wholesale druggists in Washington, D.C., and Richmond, Virginia, to maintain the wholesale and retail prices of Parke Davis pharmaceutical products. The violation was alleged to have occurred during the summer of 1956, when there was no Fair Trade Law in the District of Columbia or the State of Virginia. [Footnote 2] After the Government completed the presentation of its evidence at the trial, and without hearing Parke Davis in defense, the District Court for the District of Columbia dismissed the complaint under Rule 41(b) on the ground that, upon the facts and the law, the Government had not shown a right to relief. 164 F. Supp. 827. We noted probable jurisdiction of the Government's direct appeal under § 2 of the Expediting Act. [Footnote 3] 359 U.S. 903.Parke Davis makes some 600 pharmaceutical products which it markets nationally through drug wholesalers and Page 362 U. S. 32 drug retailers. The retailers buy these products from the drug wholesalers or make large quantity purchases directly from Parke Davis. Sometime before 1956, Parke Davis announced a resale price maintenance policy in its wholesalers' and retailers' catalogues. The wholesalers' catalogue contained a Net Price Selling Schedule listing suggested minimum resale prices on Parke Davis products sold by wholesalers to retailers. The catalogue stated that it was Parke Davis' continuing policy to deal only with drug wholesalers who observed that schedule and who sold only to drug retailers authorized by law to fill prescriptions. Parke Davis, when selling directly to retailers, quoted the same prices listed in the wholesalers' Net Price Selling Schedule, but granted retailers discounts for volume purchases. Wholesalers were not authorized to grant similar discounts. The retailers' catalogue contained a schedule of minimum retail prices applicable in States with Fair Trade Laws, and stated that this schedule was suggested for use also in States not having such laws. These suggested minimum retail prices usually provided a 50% markup over cost on Park Davis products purchased by retailers from wholesalers, but, because of the volume discount, often in excess of 100% markup over cost on products purchased in large quantities directly from Parke Davis.There are some 260 drugstores in Washington, D.C., and some 100 in Richmond, Virginia. Many of the stores are units of Peoples Drug Stores, a large retail drug chain. There are five drug wholesalers handling Parke Davis products in the locality who do business with the drug retailers. The wholesalers observed the resale prices suggested by Parke Davis. However, during the spring and early summer of 1956, drug retailers in the two cities advertised and sold several Parke Davis vitamin products at prices substantially below the suggested minimum retail prices; in some instances, the prices apparently Page 362 U. S. 33 reflected the volume discounts on direct purchases from Parke Davis, since the products were sold below the prices listed in the wholesalers' Net Price Selling Schedule. The Baltimore office manager of Parke Davis in charge of the sales district which included the two cities sought advice from his head office on how to handle this situation. The Parke Davis attorney advised that the company could legally "enforce an adopted policy arrived at unilaterally" to sell only to customers who observed the suggested minimum resale prices. He further advised that this meant that"we can lawfully say 'we will sell you only so long as you observe such minimum retail prices' but cannot say 'we will sell you only if you agree to observe such minimum retail prices,' since, except as permitted by Fair Trade legislations [sic], agreements as to resale price maintenance are invalid."Thereafter, in July, the branch manager put into effect a program for promoting observance of the suggested minimum retail prices by the retailers involved. The program contemplated the participation of the five drug wholesalers. In order to insure that retailers who did not comply would be cut off from sources of supply, representatives of Parke Davis visited the wholesalers and told them, in effect, that not only would Parke Davis refuse to sell to wholesalers who did not adhere to the policy announced in its catalogue, but also that it would refuse to sell to wholesalers who sold Parke Davis products to retailers who did not observe the suggested minimum retail prices. Each wholesaler was interviewed individually, but each was informed that his competitors were also being apprised of this. The wholesalers, without exception, indicated a willingness to go along.Representatives called contemporaneously upon the retailers involved, individually, and told each that, if he did not observe the suggested minimum retail prices, Parke Davis would refuse to deal with him, and that, furthermore, Page 362 U. S. 34 he would be unable to purchase any Parke Davis products from the wholesalers. Each of the retailers was also told that his competitors were being similarly informed.Several retailers refused to give any assurances of compliance, and continued after these July interviews to advertise and sell Parke Davis products at prices below the suggested minimum retail prices. Their names were furnished by Parke Davis to the wholesalers. Thereafter, Parke Davis refused to fill direct orders from such retailers, and the wholesalers likewise refused to fill their orders. [Footnote 4] This ban was not limited to the Parke Davis products being sold below the suggested minimum prices, but included all the company's products, even those necessary to fill prescriptions.The president of Dart Drug Company, one of the retailers cut off, protested to the assistant branch manager of Parke Davis that Parke Davis was discriminating against him because a drugstore across the street, one of the Peoples Drug chain, had a sign in its window advertising Parke Davis products at cut prices. The retailer was told that, if this were so, the branch manager "would see Peoples and try to get them in line." The branch manager testified at the trial that thereafter he talked to a vice-president of Peoples, and that the following occurred:"Q. Well, now, you told Mr. Downey [the vice-president of Peoples] at this meeting, did you not, Mr. Powers [the assistant branch manager of Parke Davis], that you noticed that Peoples were cutting prices?""A. Yes. "Page 362 U. S. 35"Q. And you told him, did you not, that it had been the Parke, Davis policy for many years to do business only with individuals that maintained the scheduled prices?""A. I told Mr. Downey that we had a policy in our catalog, and that anyone that did not go along with our policy, we were not interested in doing business with them.""* * * *" "Q. . . . Now, Mr. Downey told you on the occasion of this visit, did he not, that Peoples would stop cutting prices, and would abide by the Parke-Davis policy, is that right?""A. That is correct.""Q. When you went to call on Mr. Downey, you solicited his support of Parke, Davis policies, is not that right?""A. That is right.""Q. And he said, I will abide by your policy?""A. That is right."The District Court found, apparently on the basis of this testimony, that "The Peoples' representative stated that Peoples would stop cutting prices on Parke, Davis' products and Parke, Davis continued to sell to Peoples."But five retailers continued selling Parke Davis products at less than the suggested minimum prices from stocks on hand. Within a few weeks, Parke Davis modified its program. Its officials believed that the selling at discount prices would be deterred, and the effects minimized of any isolated instances of discount selling which might continue, if all advertising of such prices were discontinued. In August, the Parke Davis representatives again called on the retailers individually. When interviewed, the president of Dart Drug Company indicated Page 362 U. S. 36 that he might be willing to stop advertising, although continuing to sell at discount prices, if shipments to him were resumed. Each of the other retailers was then told individually by Parke Davis representatives that Dart was ready to discontinue advertising. Each thereupon said that, if Dart stopped advertising, he would also. On August 28, Parke Davis reported this reaction to Dart. Thereafter, all of the retailers discontinued advertising of Parke Davis vitamins at less than suggested minimum retail prices, and Parke Davis and the wholesalers resumed sales of Parke Davis products to them. However, the suspension of advertising lasted only a month. One of the retailers again started newspaper advertising in September, and, despite efforts of Parke Davis to prevent it, the others quickly followed suit. Parke Davis then stopped trying to promote the retailers' adherence to its suggested resale prices, and neither it nor the wholesalers have since declined further dealings with them. [Footnote 5] A reason for this was that the Department of Justice, on complaint of Dart Drug Company, had begun an investigation of possible violation of the antitrust laws.The District Court held that the Government's proofs did not establish a violation of the Sherman Act because"the actions of [Parke Davis] were properly unilateral, and sanctioned by law under the doctrine laid down in the case of United States v. Colgate & Co., 250 U. S. 300. . . ."164 F. Supp. at 829.The Colgate case came to this Court on writ of error under the Criminal Appeals Act, 34 Stat. 1246, from a District Court judgment dismissing an indictment for violation of the Sherman Act. The indictment proceeded Page 362 U. S. 37 solely upon the theory of an unlawful combination between Colgate and its wholesale and retail dealers for the purpose and with the effect of procuring adherence on the part of the dealers to resale prices fixed by the company. However, the District Court construed the indictment as not charging a combination by agreement between Colgate and its customers to maintain prices. This Court held that it must disregard the allegations of the indictment, since the District Court's interpretation of the indictment was binding, and that, without an allegation of unlawful agreement, there was no Sherman Act violation charged. The Court said:"The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce -- in a word, to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell."250 U.S. at 250 U. S. 307.The Government concedes for the purposes of this case that, under the Colgate doctrine, a manufacturer, having announced a price maintenance policy, may bring about adherence to it by refusing to deal with customers who do not observe that policy. The Government contends, however, that subsequent decisions of this Court compel the holding that what Parke Davis did here by entwining the wholesalers and retailers in a program to promote general compliance with its price maintenance policy went Page 362 U. S. 38 beyond mere customer selection, and created combinations or conspiracies to enforce resale price maintenance in violation of §§ 1 and 3 of the Sherman Act.The history of the Colgate doctrine is best understood by reference to a case which preceded the Colgate decision, Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373. Dr Miles entered into written contracts with its customers obligating them to sell its medicine at prices fixed by it. The Court held that the contracts were void because they violated both the common law and the Sherman Act. The Colgate decision distinguished Dr. Miles on the ground that the Colgate indictment did not charge that company with selling its products to dealers under agreements which obligated the latter not to resell except at prices fixed by the seller. The Colgate decision created some confusion and doubt as to the continuing vitality of the principles announced in Dr. Miles. This brought United States v. Schrader's Son, Inc., 252 U. S. 85, to the Court. The case involved the prosecution of a components manufacturer for entering into price-fixing agreements with retailers, jobbers and manufacturers who used his products. The District Court dismissed, saying:"Granting the fundamental proposition stated in the Colgate case, that the manufacturer has an undoubted right to specify resale prices and refuse to deal with any one who fails to maintain the same, or, as further stated, the act does not restrict the long recognized right of a trader or manufacturer engaged in an entirely private business freely to exercise his own independent discretion as to parties with whom he will deal, and that he, of course, may announce in advance the circumstances under which he will refuse to sell, it seems to me that it is a distinction without a difference to say that he may do so by the subterfuges Page 362 U. S. 39 and devices set forth in the [Colgate] opinion and not violate the Sherman Anti-Trust Act, yet, if he had done the same thing in the form of a written agreement, adequate only to effectuate the same purpose, he would be guilty of a violation of the law. . . ."264 F. 175, 184. This Court reversed, and said:"The court below misapprehended the meaning and effect of the opinion and judgment in [Colgate]. We had no intention to overrule or modify the doctrine of Dr. Miles Medical Co. v. John D. Park & Sons Co., where the effort was to destroy the dealers' independent discretion through restrictive agreements."252 U.S. at 252 U. S. 99.The Court went on to explain that the statement from Colgate quoted earlier in this opinion meant no more than that a manufacturer is not guilty of a combination or conspiracy if he merely "indicates his wishes concerning prices and declines further dealings with all who fail to observe them . . . "; however, there is unlawful combination where a manufacturer"enters into agreements -- whether express or implied from a course of dealing or other circumstances -- with all customers . . . which undertake to bind them to observe fixed resale prices."Ibid.The next decision was Frey & Son. Inc., v. Cudahy Packing Co., 256 U. S. 208. That was a treble damage suit alleging a conspiracy in violation of the Sherman Act between the manufacturer and jobbers to maintain resale prices. The plaintiff recovered a judgment. The Court of Appeals for the Fourth Circuit reversed on the authority of Colgate. The Court of Appeals concluded: "There was no formal written or oral agreement with jobbers for the maintenance of prices," and, in that circumstance, held Page 362 U. S. 40 that, under Colgate, the trial court should have directed a verdict for the defendant. In holding that the Court of Appeals erred, this Court referred to the decision in Schrader as holding that the "essential agreement, combination or conspiracy might be implied from a course of dealing or other circumstances," so that, in Cudahy,"Having regard to the course of dealing and all the pertinent facts disclosed by the present record, we think whether there existed an unlawful combination or agreement between the manufacturer and jobbers was a question for the jury to decide, and that the Circuit Court of Appeals erred when it held otherwise."256 U.S. at 256 U. S. 210.But the Court also held improper an instruction which was given to the jury that a violation of the Sherman Act might be found if the jury should find as facts that the defendant"indicated a sales plan to the wholesalers and jobbers, which plan fixed the price below which the wholesalers and jobbers were not to sell to retailers, and . . . [that] defendant called this particular feature of this plan to their attention on very many different occasions, and . . . [that] the great majority of them not only [expressed] no dissent from such plan, but actually [cooperated] in carrying it out by themselves selling at the prices named. . . ."256 U.S. 256 U. S. 210-211. However, the authority of this holding condemning the instruction has been seriously undermined by subsequent decisions which we are about to discuss. Therefore, Cudahy does not support the District Court's action in this case, and we cannot follow it here. Less than a year after Cudahy was handed down, the Court decided Federal Trade Commission v. Beech-Nut Packing Co., 257 U. S. 441, which presented a situation bearing a marked resemblance to the Parke Davis program.In Beech-Nut, the company had adopted a policy of refusing to sell its products to wholesalers or retailers who did not adhere to a schedule of resale prices. Beech-Nut Page 362 U. S. 41 later implemented this policy by refusing to sell to wholesalers who sold to retailers who would not adhere to the policy. To detect violations, the company utilized code numbers on its products and instituted a system of reporting. When an offender was cut off, he would be reinstated upon the giving of assurances that he would maintain prices in the future. The Court construed the Federal Trade Commission Act to authorize the Commission to forbid practices which had a "dangerous tendency unduly to hinder competition or create monopoly." 257 U.S. at 257 U. S. 454. The Sherman Act was held to be a guide to what constituted an unfair method of competition. The company had urged that its conduct was entirely legal under the Sherman Act as interpreted by Colgate. The Court rejected this contention, saying that"the Beech-Nut system goes for beyond the simple refusal to sell goods to persons who will not sell at stated prices, which, in the Colgate case, was held to be within the legal right of the producer."Ibid. The Court held further that the nonexistence of contracts covering the practices was irrelevant, since"[t]he specific facts found show suppression of the freedom of competition by methods in which the company secures the cooperation of its distributors and customers, which are quite as effectual as agreements express or implied intended to accomplish the same purpose."Id. at 257 U. S. 455. That the Court considered that the Sherman Act violation thus established was dispositive of the issue before it is shown by the ground taken by Mr. Justice McReynolds in dissent. The parties had stipulated that there were no contracts covering the policy. Relying on his view of Colgate, he asked: "How can there be methods of cooperation . . . when the existence of the essential contracts is definitely excluded?" Id. at 257 U. S. 459. The majority did not read Colgate as requiring such contracts; rather, the Court dispelled the confusion over whether a combination effected by contractual arrangements, Page 362 U. S. 42 express or implied, was necessary to a finding of Sherman Act violation by limiting Colgate to a holding that, when the only act specified in the indictment amounted to saying that the trader had exercised his right to determine those with whom he would deal, and to announce the circumstances under which he would refuse to sell, no Sherman Act violation was made out. However, because Beech-Nut's methods were as effective as agreements in producing the result that "all who would deal in the company's products are constrained to sell at the suggested prices," 257 U.S. at 257 U. S. 455, the Court held that the securing of the customers' adherence by such methods constituted the creation of an unlawful combination to suppress price competition among the retailers.That Beech-Nut narrowly limited Colgate and announced principles which subject to Sherman Act liability the producer who secures his customers' adherence to his resale prices by methods which go beyond the simple refusal to sell to customers who will not resell at stated prices was made clear in United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 321 U. S. 722:"The Beech-Nut case recognizes that a simple refusal to sell to others who do not maintain the first seller's fixed resale prices is lawful, but adds as to the Sherman Act,"" He [the seller] may not, consistently with the act, go beyond the exercise of this right, and by contracts or combinations, express or implied, unduly hinder or obstruct the free and natural flow of commerce in the channels of interstate trade.""257 U.S. at 257 U. S. 453. The Beech-Nut Company, without agreements, was found to suppress the freedom of competition by coercion of its customers through special agents of the company, by reports of competitors about customers who violated resale prices, and by boycotts of price cutters. . . . "Page 362 U. S. 43Bausch & Lomb, like the instant case, was an action by the United States to restrain alleged violations of §§ 1 and 3 of the Sherman Act. The Court, relying on Beech-Nut, held that a distributor, Soft-Lite Lens Company, Inc., violated the Sherman Act when, as was the case with Parke Davis, the refusal to sell to wholesalers was not used simply to induce acquiescence of the wholesalers in the distributor's published resale price list; the wholesalers"accepted Soft-Lite's proffer of a plan of distribution by cooperating in prices, limitation of sales to and approval of retail licensees. That is sufficient. . . . Whether this conspiracy and combination was achieved by agreement or by acquiescence of the wholesalers, coupled with assistance in effectuating its purpose, is immaterial."321 U.S. at 321 U. S. 723. Thus, whatever uncertainty previously existed as to the scope of the Colgate doctrine, Bausch & Lomb and Beech-Nut plainly fashioned its dimensions as meaning no more than that a simple refusal to sell to customers who will not resell at prices suggested by the seller is permissible under the Sherman Act. In other words, an unlawful combination is not just such as arises from a price maintenance agreement, express or implied; such a combination is also organized if the producer secures adherence to his suggested prices by means which go beyond his mere declination to sell to a customer who will not observe his announced policy.In the cases decided before Beech-Nut, the Court's inquiry was directed to whether the manufacturer had entered into illicit contracts, express or implied. The District Court in this case apparently assumed that the Government could prevail only by establishing a contractual arrangement, albeit implied, between Parke Davis and its customers. Proceeding from the same premise, Parke Davis strenuously urges that Rule 52 of the Rules of Civil Procedure compels an affirmance of the Page 362 U. S. 44 District Court, since under that Rule, the finding that there were no contractual arrangements should "not be set aside unless clearly erroneous." But Rule 52 has no application here. The District Court premised its ultimate finding that Parke Davis did not violate the Sherman Act on an erroneous interpretation of the standard to be applied. The Bausch & Lomb and Beech-Nut decisions cannot be read as merely limited to particular fact complexes justifying the inference of an agreement in violation of the Sherman Act. Both cases teach that judicial inquiry is not to stop with a search of the record for evidence of purely contractual arrangements. The Sherman Act forbids combinations of traders to suppress competition. True, there results the same economic effect as is accomplished by a prohibited combination to suppress price competition if each customer, although induced to do so solely by a manufacturer's announced policy, independently decides to observe specified resale prices. So long as Colgate is not overruled, this result is tolerated, but only when it is the consequence of a mere refusal to sell in the exercise of the manufacturer's right "freely to exercise his own independent discretion as to parties with whom he will deal." When the manufacturer's actions, as here, go beyond mere announcement of his policy and the simple refusal to deal, and he employs other means which effect adherence to his resale prices, this countervailing consideration is not present, and therefore he has put together a combination in violation of the Sherman Act. Thus, whether an unlawful combination or conspiracy is proved is to be judged by what the parties actually did, rather than by the words they used. See Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U. S. 600, 234 U. S. 612. Because of the nature of the District Court's error we are reviewing a question of law, namely, whether the District Court applied the proper standard to essentially undisputed facts. See Interstate Page 362 U. S. 45 Circuit v. United States, 306 U. S. 208; United States v. Masonite Corp., 316 U. S. 265; United States v. United States Gypsum Co., 333 U. S. 364; United States v. E. I. Du Pont De Nemours & Co., 353 U. S. 586; and also United States v. John J. Felin & Co., 334 U. S. 624; Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U. S. 147.The program upon which Parke Davis embarked to promote general compliance with its suggested resale prices plainly exceeded the limitations of the Colgate doctrine, and, under Beech-Nut and Bausch & Lomb, effected arrangements which violated the Sherman Act. Parke Davis did not content itself with announcing its policy regarding retail prices and following this with a simple refusal to have business relations with any retailers who disregarded that policy. Instead, Parke Davis used the refusal to deal with the wholesalers in order to elicit their willingness to deny Parke Davis products to retailers, and thereby help gain the retailers' adherence to its suggested minimum retail prices. The retailers who disregarded the price policy were promptly cut off when Parke Davis supplied the wholesalers with their names. The large retailer who said he would "abide" by the price policy, the multi-unit Peoples Drug chain, was not cut off. [Footnote 6] In thus involving the wholesalers to stop the flow of Parke Davis products to the retailers, thereby inducing retailers' adherence to its suggested retail prices, Parke Davis created a combination with the retailers and the wholesalers to maintain retail prices and violated the Sherman Act. Although Parke Davis' originally announced wholesalers' policy would not, under Colgate, have violated the Page 362 U. S. 46 Sherman Act if its action thereunder was the simple refusal, without more, to deal with wholesalers who did not observe the wholesalers' Net Price Selling Schedule, that entire policy was tainted with the "vice of . . . illegality," cf. United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 321 U. S. 724, when Parke Davis used it as the vehicle to gain the wholesalers' participation in the program to effectuate the retailers' adherence to the suggested retail prices.Moreover, Parke Davis also exceeded the "limited dispensation which (Colgate) confers," Times-Picayune Pub. Co. v. United States, 345 U. S. 594, 345 U. S. 626, in another way, which demonstrates how far Parke Davis went beyond the limits of the Colgate doctrine. With regard to the retailers' suspension of advertising, Parke Davis did not rest with the simple announcement to the trade of its policy in that regard followed by a refusal to sell to the retailers who would not observe it. First, it discussed the subject with Dart Drug. When Dart indicated willingness to go along, the other retailers were approached, and Dart's apparent willingness to cooperate was used as the lever to gain their acquiescence in the program. Having secured those acquiescences, Parke Davis returned to Dart Drug with the report of the accomplishment. Not until all this was done was the advertising suspended and sales to all the retailers resumed. In this manner, Parke Davis sought assurances of compliance and got them, as well as the compliance itself. It was only by actively bringing about substantial unanimity among the competitors that Parke Davis was able to gain adherence to its policy. It must be admitted that a seller's announcement that he will not deal with customers who do not observe his policy may tend to engender confidence in each customer that, if he complies, his competitors will also. But if a manufacturer is unwilling to rely on individual self-interest to bring Page 362 U. S. 47 about general voluntary acquiescence which has the collateral effect of eliminating price competition, and takes affirmative action to achieve uniform adherence by inducing each customer to adhere to avoid such price competition, the customers' acquiescence is not then a matter of individual free choice prompted alone by the desirability of the product. The product then comes packaged in a competition-free wrapping -- a valuable feature in itself -- by virtue of concerted action induced by the manufacturer. The manufacturer is thus the organizer of a price maintenance combination or conspiracy in violation of the Sherman Act. Under that Act, "competition, not combination, should be the law of trade," National Cotton Oil Co. v. Texas, 197 U. S. 115, 197 U. S. 129, and"a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se."United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 310 U. S. 223. And see United States v. McKesson & Robbins, Inc., 351 U. S. 305; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211; Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U. S. 600.The District Court also alternatively rested its judgment of dismissal on the holding that,". . . even if the unlawful conditions alleged in the Complaint had actually been proved, since 1956, they no longer existed, and . . . [there is] no reason to believe, or even surmise, the unlawful acts alleged can possibly be repeated. . . ."167 F. Supp. 827, 829, 830. We are of the view that the evidence does not justify any such finding. The District Court stated that "the compelling reason for defendant's so doing [ceasing its efforts] was forced upon it by business and economic conditions in its field." There is no evidence in the record that this was the reason, and any such conclusion must rest on speculation. It does not appear even that Page 362 U. S. 48 Parke Davis has announced to the trade that it will abandon the practices we have condemned. So far as the record indicates any reason, it is that Parke Davis stopped its efforts because the Department of Justice had instituted an investigation. The president of Dart Drug Company testified that he had told the Parke Davis representatives in August that he had just been talking to the Department of Justice investigators. He stated that the Parke Davis representatives had said that "they [knew] that the Antitrust Division was investigating them all over town," and that this was one of their reasons for visiting him. The witness testified that it was on this occasion, after the discussion of the investigation, that the Parke Davis representatives finally stated that, if Dart would stop advertising, Parke Davis "would resume shipment, insofar as there was an Antitrust investigation going on." Moreover Parke Davis' own employees, who were called by the Government as witnesses at the trial, admitted that they were aware of the investigation at the time, and that the investigation was a reason for the discontinuance of the program. It seems to us that, if the investigation would prompt Parke Davis to discontinue its efforts, even more so would the litigation which ensued.On the record before us, the Government is entitled to the relief it seeks. The courts have an obligation, once a violation of the antitrust laws has been established, to protect the public from a continuation of the harmful and unlawful activities. A trial court's wide discretion in fashioning remedies is not to be exercised to deny relief altogether by lightly inferring an abandonment of the unlawful activities from a cessation which seems timed to anticipate suit. See United States v. Oregon State Medical Society, 343 U. S. 326, 343 U. S. 333.The judgment is reversed, and the case remanded to the District Court with directions to enter an appropriate Page 362 U. S. 49 judgment enjoining Parke Davis from further violations of the Sherman Act unless the company elects to submit evidence in defense and refutes the Government's right to injunctive relief established by the present record.It is so ordered | U.S. Supreme CourtUnited States v. Parke, Davis & Co., 362 U.S. 29 (1960)United States v. Parke, Davis & Co.No. 20Argued November 10, 1959Decided February 29, 1960362 U.S. 29SyllabusIn a civil suit under § 4 of the Sherman Act charging appellee with combining and conspiring to maintain resale prices of its products in areas which have no "fair trade" laws, the Government introduced evidence showing that appellee had (1) announced a policy of refusing to deal with retailers who failed to observe appellee's suggested minimum resale prices or who advertised discount prices on. appellee's products, (2) discontinued direct sales to those retailers who failed to abide by the announced policy, (3) induced wholesale distributors to stop selling appellee's products to the offending retailers, (4) secured unanimous adherence by informing a number of the retailers that, if each of them would adhere to the announced policy, one of their principal competitors would also do so, and (5) permitted the retailers to resume purchasing its products after they had indicated willingness to observe the policy. The evidence further established that appellee had terminated these practices after becoming aware that the Department of Justice had begun an investigation of its price maintenance activities. The District Court dismissed the complaint on the ground that the Government had not shown a right to relief.Held: The judgment is reversed, and the case remanded with directions to enter an appropriate judgment enjoining appellee from further violations of the Sherman Act, unless it elects to submit evidence in defense and refutes the Government's right to injunctive relief established by the present record. Pp. 362 U. S. 30-49.(a) The District Court erred in holding that these practices constituted only unilateral action by appellee in selecting its customers, as permitted by United States v. Colgate Co., 250 U. S. 300. Appellee did not merely announce its policy and then decline to have further dealings with retailers who failed to abide by it, but, by utilizing wholesalers and other retailers, it actively induced unwilling retailers to comply with the policy. The resulting concerted action to maintain the resale prices constituted a conspiracy or combination in violation of the Sherman Act, although it was not based on any contract, express or implied . Pp. 362 U. S. 36-47. Page 362 U. S. 30(b) Rule 52 of the Federal Rules of Civil Procedure does not require affirmance of the District Court's ultimate finding that respondent did not violate the Sherman Act, because that conclusion was based on an erroneous interpretation of the law. Pp. 362 U. S. 43-45.(e) The District Court's alternative holding that dismissal of the complaint was warranted because there was no reasonable probability that appellee would resume its attempts to maintain resale prices is erroneous, because it is not supported by the evidence. Pp. 362 U. S. 47-48.164 F. Supp. 827 reversed. |
379 | 1967_25 | MR. JUSTICE DOUGLAS delivered the opinion of the Court.This suit for declaratory relief that a Maryland teacher's oath required of appellant was unconstitutional was heard by a three-judge court and dismissed. 258 F. Supp. 589. We noted probable jurisdiction. 386 U.S. 906.Appellant, who was offered a teaching position with the University of Maryland, refused to take the following oath:"I, _________, do hereby (Print Name -- including middle initial) certify that I am not engaged in one way or another in the attempt to overthrow the Government of the United States, or the State of Maryland, or any political subdivision of either of them, by force or violence. "Page 389 U. S. 56"I further certify that I understand the aforegoing statement is made subject to the penalties of perjury prescribed in Article 27, Section 439 of the Annotated Code of Maryland (1957 edition)."The question is whether the oath is to be read in isolation or in connection with the Ober Act (Art. 85A, Md.Ann.Code, 1957), which ,by §§ 1 and 13, defines a "subversive" as". . . any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the State of Maryland, or any political subdivision of either of them, by revolution, force, or violence; or who is a member of a subversive organization or a foreign subversive organization, as more fully defined in this article."(Italics supplied.) Section 1 defines the latter terms: "subversive organization" meaning a group that would, inter alia, "alter" the form of government "by revolution, force, or violence"; "foreign subversive organization" is such a group directed, dominated, or controlled by a foreign government which engages in such activities.The oath was prepared by the Attorney General and approved by the Board of Regents that has exclusive management of the university. It is conceded that the Board had authority to provide an oath, as § 11 of the Act directs every agency of the State which appoints, employs, or supervises officials or employees to establish procedures designed to ascertain before a person is appointed or employed that he or she "is not a subversive person." And that term is, as noted, defined by § 1 and 13. Our conclusion is that, since the authority to prescribe oaths is provided by § 11 of the Act, and since it is, in turn, tied to §§ 1 and 13, we must consider the Page 389 U. S. 57 oath with reference to §§ 1 and 13, not in isolation. Nor can we assume that the Board of Regents meant to encompass less than the Ober Act, as construed, sought to cover.If the Federal Constitution is our guide, a person who might wish to "alter" our form of government may not be cast into the outer darkness. For the Constitution prescribes the method of "alteration" by the amending process in Article V, and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered. Moreover, the First Amendment, which protects a controversial as well as a conventional dialogue (Terminiello v. Chicago, 337 U. S. 1), is as applicable to the States as it is to the Federal Government, and it extends to petitions for redress of grievances (Edwards v. South Carolina, 372 U. S. 229, 372 U. S. 235) as well as to advocacy and debate. So if §§ 1 and 13 of the Ober Act are the frame of reference in which the challenged oath is to be adjudged, we have important questions to resolve.We are asked to treat §§ 1 and 13 as if they barred only those who seek to overthrow or destroy the Government by force or violence. Reference is made to Gerende v. Election Board, 341 U. S. 56, where, in considering the definition of "subversive" person applicable to § 15 of the Act, governing candidates for office, we accepted the representation of the Attorney General that he would advise the proper authorities in Maryland to take and adopt the narrower version of the term "subversive." The Court of Appeals of Maryland had indicated in Shub v. Simpson, 196 Md. 177, 76 A.2d 332, that the purpose of the Act was to reach that group, and that the words "revolution, force, or violence" in § 1 did not include a peaceful revolution but one accomplished by force or violence. Id. at 190-191, 76 A.2d at 337-338. In that view the "alteration" defined would be an alteration Page 389 U. S. 58 by force and violence. That construction had not yet been fashioned into an oath or certificate when Gerende reached us. That case involved an attempt by a candidate for public office in Maryland to require the election officials to dispense with an oath that incorporated the statutory language. The Court of Appeals refused the relief asked. We referred to the narrow construction of §§ 1 and 15 given in the Shub case saying:"We read this decision to hold that to obtain a place on a Maryland ballot a candidate need only make oath that he is not a person who is engaged 'in one way or another in the attempt to overthrow the government by force or violence,' and that he is not knowingly a member of an organization engaged in such an attempt. [196] Md. at [192], 76 A.2d at 338. At the bar of this Court the Attorney General of the State of Maryland declared that he would advise the proper authorities to accept an affidavit in these terms as satisfying in full the statutory requirement. Under these circumstances, and with this understanding, the judgment of the Maryland Court of Appeals is affirmed."341 U.S. at 341 U. S. 56-57.As we said in Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 368, n. 7, we did not pass upon or approve the statutory definition of a "subversive" person in the Gerende case. Rather, we accepted the narrowing construction tendered by the Attorney General during oral argument so as to avoid the constitutional issue that was argued.It is, however, urged that § 18 of the Act which contains a severability clause makes it possible for the Maryland Attorney General and for us to separate the wheat from the chaff that may be in §§ 1 and 13. The District Court found merit in the point. 258 F. Supp. at 596. But our difficulty goes deeper. As we have said in like situations, the oath required must not be so Page 389 U. S. 59 and broad as to make men of common intelligence speculate at their peril on its meaning. Baggett v. Bullitt, supra; Elfbrandt v. Russell, 384 U. S. 11; Keyishian v. Board of Regents, 385 U. S. 589. And so we are faced with the kind of problem which we thought we had avoided in Gerende.As we have seen, §§ 1 and 13 reach (1) those who would "alter" the form of government "by revolution, force, or violence" and (2) those who are members of a subversive organization or a foreign subversive organization.The prescribed oath requires, under threat of perjury, a statement that the applicant is not engaged "in one way or another" in an attempt to overthrow the Government by force or violence. Though we assume arguendo that the Attorney General and the Board of Regents were authorized so to construe the Act as to prescribe a narrow oath (1) that excluded "alteration" of the Government by peaceful "revolution" and (2) that excluded all specific reference to membership in subversive groups, we still are beset with difficulties. Would a member of a group that was out to overthrow the Government by force or violence be engaged in that attempt "in one way or another" within the meaning of the oath, even though he was ignorant of the real aims of the group and wholly innocent of any illicit purpose? We do not know; nor could a prospective employee know, save as he risked a prosecution for perjury.We are in the First Amendment field. The continuing surveillance [Footnote 1] which this type of law places on teachers is Page 389 U. S. 60 hostile to academic freedom. As we said in Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 250:"The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die."The restraints on conscientious teachers are obvious. As we noted in the Elfbrandt case, even attendance at an international conference might be a trap for the innocent if that conference were predominantly composed of those who would overthrow the Government by force or violence. 384 U.S. at 384 U. S. 16-17. "Juries might convict though the teacher did not subscribe to the wrongful aims of the organization." Id. at 384 U. S. 17.In sum, we read the oath as an integral part of the Ober Act, and we undertake to read §§ 1 and 13 of that Act in light of the gloss that the Maryland courts have placed on it. We know that the Shub case says that"[a] person who advocates the overthrow of the Government of the United States . . . through force or violence could scarcely in good faith, take the constitutional oath of office. . . ."196 Md. at 190, 76 A.2d at 337. (Italics supplied.) Yet that case does little more than Page 389 U. S. 61 afford the basis for argument that membership in a subversive organization means that the member must advocate a violent overthrow. This, however, is speculation, not certainty. Another Maryland case bearing on the question is Character Committee v. Madras, 233 Md. 285, 196 A.2d 630. There an applicant for admission to the Maryland bar answered "No" to the question "Are you now or have you ever been a subversive person as defined by the [Ober Act]?" He had apparently at one time been a member of the Communist Party. At a hearing he testified he had joined the party because he was interested in the candidacy of Henry Wallace and in the cause of civil liberties; but he denied he had been a subversive person or that he had advocated violent overthrow of the Government. The Court of Appeals affirmed the Board of Law Examiners, finding that the applicant was not a subversive person. So it can be argued that passive membership as a matter of Maryland law does not make a person a subversive. Yet, as we read §§ 1 and 13 of the Ober Act, the alteration clause and membership clause are still befogged. [Footnote 2] The Page 389 U. S. 62 lines between permissible and impermissible conduct are quite indistinct. Precision and clarity are not present. Rather we find an overbreadth that makes possible oppressive or capricious application as regimes change. That very threat, as we said in another context (NAACP v. Button, 371 U. S. 415, 371 U. S. 432-433), may deter the flowering of academic freedom as much as successive suits for perjury.Like the other oath cases mentioned, we have another classic example of the need for "narrowly drawn" legislation (Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 311) in this sensitive and important First Amendment area.Reversed | U.S. Supreme CourtWhitehill v. Elkins, 389 U.S. 54 (1967)Whitehill v. ElkinsNo. 25Argued October 16, 1967Decided November 6, 1967389 U.S. 54SyllabusAppellant, who had been offered a University of Maryland teaching position, brought this suit for declaratory relief challenging the constitutionality of a state "loyalty oath," which he refused to take. The oath, drafted by the Attorney General and approved by the Board of Regents, contains a certification that an applicant for public employment is not "engaged in one way or another in the attempt to overthrow the Government . . . by force or violence." Section 11 of the Ober Act authorizes state agencies to fix procedures to ascertain that a prospective employee is not a "subversive person," a term which, as defined in §§ 1 and 13, reaches one who is a member of a subversive organization which would alter, overthrow, or destroy the Government by revolution, force, or violence. A three-judge District Court dismissed the complaint.Held:1. Since the authority to prescribe oaths is provided by § 11 of the Ober Act, which is tied to §§ 1 and 13, the oath here must be considered not in isolation, but with reference to §§ 1 and 13. Pp. 389 U. S. 56-57.2. Sections 1 and 13 violate due process requirements of the Fourteenth Amendment, since they are unconstitutionally vague and overbroad by not distinctly delineating between permissible and impermissible conduct in the sensitive and important area of academic freedom. Pp. 389 U. S. 57-62.(a) In Gerende v. Election Board, 341 U. S. 56, which involved application of an oath to candidates in Maryland for public office, this Court did not reach the question now presented. P. 389 U. S. 58.(b) In the light of the gloss placed upon the Act by the Maryland courts, it is uncertain whether only those members of a "subversive" group are barred who seek to overthrow or destroy the Government by force or violence. Thus, a prospective employee could not know, save as he risked a perjury prosecution, Page 389 U. S. 55 whether as a member of a group aiming through violence to overthrow the Government he would "in one way or another" be engaged in an attempt at violent overthrow even though he was ignorant of the group's real aims. Pp. 389 U. S. 57-62.258 F. Supp. 589, reversed. |
380 | 1991_90-967 | Frederick G. Cloppert, Jr., argued the cause for respondents. With him on the brief were Michael J. Hunter and Russell E. Carnahan. *JUSTICE WHITE delivered the opinion of the Court.We have before us two questions: whether a union member who sues his local union for money damages under Title I of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 519, as amended, 29 U. S. C. § 401 et seq., is entitled to a jury trial, and whether under § 301(a) of the Labor-Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185(a),1 the District Court had jurisdiction over the breach-of-contract suit brought in this case by a union member against his local union.IPetitioner is a member of Local 71 of the International Brotherhood of Electrical Workers (IBEW). In the wake of a dispute arising out of petitioner's opposition to an announced dues increase and to the appointment of a union representative, the respondent president of the local (petitioner's brother) filed internal disciplinary proceedings against petitioner. No decision was finally rendered on the charges. Later, petitioner alleges, the union discriminated against him in job referrals in the operation of a hiring hall provided for in Local 71's collective-bargaining contracts with electrical contractors. Petitioner brought suit against*Steven R. Shapiro, John A. Powell, and Helen Hershkoff filed a brief for the Association for Union Democracy et al. as amici curiae urging reversal.1 Section 301(a) states: "Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in the Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties." 29 U. S. C. § 185(a).96the local and its officers in the United States District Court. Petitioner's complaint alleged violation of his rights protected by the LMRDA in that he had been discriminated against in job referrals because of his opposition to proposed union policy; violation of his right to a fair hearing under the LMRDA; violations of the IBEW Constitution and the bylaws of Local 71, which were alleged to constitute breaches of contract redressable under § 301 of the LMRA and state law; breach of the duty of fair representation redressable under § 301; and pendent state-law claims alleging interference with contractual relations and intentional infliction of emotional distress. Petitioner sought injunctive relief, lost wages and benefits, additional compensatory damages, punitive damages, and attorney's fees. App. 14-15.In the course of acting on two summary judgment motions filed by defendants, the District Court dismissed all claims against all defendants. The Court of Appeals reversed the dismissal of the LMRDA free speech-job discrimination claim but otherwise affirmed the District Court, including its holding that petitioner had no right to have his LMRDA claim tried to a jury. Judgt. order reported at 907 F.2d 151 (CA6 1990). With respect to the § 301 breach-of-contract claim, the Court of Appeals relied on prior Circuit precedent2 in holding that § 301 did not authorize such an action to be brought by an individual union member. We granted certiorari to address both the jury trial and the § 301 issues. 498 U. S. 1082 (1991).2 Trail v. Teamsters, 542 F.2d 961 (CA6 1976). Other Courts of Appeals that have addressed this issue since Plumbers and Pipe fitters v. Plumbers and Pipe fitters, Local 334, 452 U. S. 615 (1981), have reached a contrary conclusion. See, e. g., DeSantiago v. Laborers Int'l Union of North America, Local No. 1140, 914 F.2d 125 (CA8 1990); Pruitt v. Carpenters Local Union No. 225, 893 F.2d 1216 (CA111990); Lewis v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 771, 826 F.2d 1310 (CA3 1987); Kinney v. International Brotherhood of Electrical Workers, 669 F.2d 1222 (CA9 1981).97IIWe first address the jury trial issue. The case below was briefed and argued before our decision in Teamsters v. Terry, 494 U. S. 558 (1990). Although Terry was handed down on March 20, 1990, well before the decision of the Court of Appeals for the Sixth Circuit, the decision below neither cites nor discusses Terry.To determine whether a particular action will resolve legal rights, and therefore give rise to a jury trial right, we examine both the nature of the issues involved and the remedy sought. Id., at 565. "'First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature.''' Ibid., citing Tull v. United States, 481 U. S. 412, 417-418 (1987). The second inquiry is the more important in our analysis. Terry, supra, at 565, citing Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 42 (1989).In Terry, we applied settled principles of Seventh Amendment interpretation to a claim for an employer's breach of a collective-bargaining agreement under § 301 and the union's breach of the duty of fair representation. Generally, an award of money damages was the traditional form of relief offered in the courts of law. Terry, supra, at 570, citing Curtis v. Loether, 415 U. S. 189, 196 (1974). Because we found that the damages sought were neither analogous to equitable restitutionary relief, Tull, 481 U. S., at 424, nor incidental to or intertwined with injunctive relief, ibid., we concluded that the remedy had none of the attributes required for an exception to the general rule, and thus found the remedy sought to be legal. Terry, supra, at 570, 571.Petitioner contends that, although he seeks injunctive relief as well as damages, the injunctive relief is incidental to the damages, and not vice versa, and that his claim for lost wages cannot be treated as restitutionary incident to an98order reinstating him to a job from which he has been terminated, as the damages sought are for pay for jobs to which the union failed to refer him. Also, this Court has recently held that actions under the LMRDA are closely analogous to personal injury actions, Reed v. United Transportation Union, 488 U. S. 319, 326-327 (1989). A personal injury action is of course a prototypical example of an action at law, to which the Seventh Amendment applies.We agree with petitioner and hold that petitioner was entitled to a jury trial on the LMRDA cause of action, and we note that respondents now concede that Terry controls this case. Accordingly, we reverse the judgment below on this issue.IIIWhether the subject-matter jurisdiction conferred on the district courts by § 301 extends to suits on union constitutions brought by individual union members is strongly disputed by respondents. We agree with petitioner on this issue, however.In Smith v. Evening News Assn., 371 U. S. 195, 198 (1962), we held that the word "between" in § 301 refers to "contracts," not "suits," id., at 200-201. Hence, a suit properly brought under § 301 must be a suit either for violation of a contract between an employer and a labor organization representing employees in an industry affecting commerce or for violation of a contract between such labor organizations. No employer-union contract is involved here; if the District Court had § 301 subject-matter jurisdiction over petitioner's suit against his union, it is because his suit alleges a violation of a contract between two unions,3 and because § 301 is not3 The § 301 issue is stated as follows by both petitioner and respondents:"Does section 301 of the Labor-Management Relations Act create a federal cause of action under which a union member may sue his union for a violation of the union constitution?" Brief for Petitioner i; Brief for Respondents i. As the text makes clear, the answer to that question is in the99limited to suits brought by a party to that contract, i. e., because one in petitioner's position may properly bring such a suit.4The first of the two requirements is governed in part by Plumbers and Pipefitters v. Plumbers and Pipefitters, Local 334, 452 U. S. 615 (1981). In that case a local union sued the international union of which it was a part. The claim was that the international had violated a specific provision of its own constitution by ordering the consolidation of nine local unions into two. The issue was whether that constitution was a contract between labor organizations within the meaning of § 30l.Since union constitutions were at the time of enactment of Taft- Hartley (and remain) probably the most commonplace form of contract between labor organizations, we concluded that Congress would not likely have used the unqualified term "contract" without intending to encompass union constitutions. Id., at 624. Certainly Congress could conclude that the enforcement of the terms of union constitutions would contribute to labor stability, and that § 301 should be enacted to provide"federal jurisdiction for enforcement of contracts made by labor organizations to counteract jurisdictional defects in many state courts that made it difficult or impossible to bring suits against labor organizations by reason of their status as unincorporated organizations." Ibid. (emphasis in original).affirmative, but only if it is charged that the breach alleged violates a contract between two labor organizations.4 Of course, for petitioner to bring suit, he must have personal standing.As the case comes to us, however, the sole issue is whether a suit by a union member alleging a violation of a contract between two unions is within the subject-matter jurisdiction conferred by § 301. Petitioner's standing to bring the suit is not disputed before this Court.100Therefore, we held, the suit by the local union was for a violation of a contract between two unions within the meaning of § 301.It is clear in this case that petitioner charged a violation of a contract between two unions within the meaning of § 301. 5 His amended complaint alleged that the constitution of the IBEW requires "all Local Unions to live up to all collective bargaining agreements" and that the IBEW Constitution and the bylaws of Local 71 "are contracts which are binding upon Local 71."6 App. 12-13. In its amended answer, Local 71 admitted these allegations, i. e., conceded that it had promised to comply with the collective-bargaining contracts. Petitioner also alleged generally that the defendants had breached the above-mentioned contracts; more specifically, he alleged that he had been discriminated against in hiring-hall job referrals, contrary to the applicable collective-bargaining agreements and contrary to the IBEW Constitution.Nevertheless, respondents submit that § 301 jurisdiction reaches only suits by the parties to the interunion contract; third-party suits seeking to enforce a violation of the contract are beyond the jurisdictional grant. Smith v. Evening News, however, is to the contrary. There an individual employee brought suit against his employer to enforce a collective-bargaining contract between the employer and the union collective-bargaining agent. We held that § 301 suits5 It is not disputed that the IBEW, as well as Local 71, is a labor organization representing employees in an industry affecting commerce.6The Joint Appendix 21-41 sets out selected provisions of the IBEW Constitution. Included is a section entitled "Rules for Local Unions." Among the 23 rules prescribed, in addition to the rule requiring local unions to honor their contracts, is a rule requiring IBEW approval of all bylaws adopted and all agreements entered into by local unions. There is a reference in these rules to a "charter" of a local union, but if Local 71 has a charter or a constitution, or both, neither is a part of the record in this case. The complaint refers to bylaws of the local, but the record also omits setting out the relevant bylaws.101were not limited to suits brought by the contracting parties and that an individual employee could sue under § 301 for violation of an employer-union contract. We noted:"The rights of individual employees concerning rates of pay and conditions of employment are a major focus of the negotiation and administration of collective bargaining contracts. Individual claims lie at the heart of the grievance and arbitration machinery, are to a large degree inevitably intertwined with union interests and many times precipitate grave questions concerning the interpretation and enforceability of the collective bargaining contract on which they are based." 371 U. S., at 200.In concluding that the employee's suit was one provided for by § 301, we observed that under a contrary holding there would be "'[t]he possibility that individual contract terms might have different meanings under state and federal law [which] would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.'" Id., at 200-201, quoting Teamsters v. Lucas Flour Co., 369 U. S. 95, 103 (1962).Similar considerations bear on this case. Congress expressly provided in § 301(a) for federal jurisdiction over contracts between an employer and a labor organization or between labor organizations. Collective-bargaining agreements are the principal form of contract between an employer and a labor organization. Individual union members, who are often the beneficiaries of provisions of collectivebargaining agreements, may bring suit on these contracts under § 301. Likewise, union constitutions are an important form of contract between labor organizations. Members of a collective-bargaining unit are often the beneficiaries of such interunion contracts, and when they are, they likewise may bring suit on these contracts under § 301.102If they could not, unacceptable consequences could ensue.There is no doubt that IBEW could sue under § 301 to enforce Local 71's contract with IBEW and there is no doubt that such a suit would be governed by federal law. If suit by an employee to enforce an interunion contract is not authorized by § 301 and the employee is remitted to state court and to state law, it is plain that the same contract terms might be given different meanings based solely on the identity of the party. This would exert the disruptive influence our cases have spoken of.Respondents contend that construing § 301 as we do signals an unwarranted intrusion on state contract law that Congress could not have intended. It is argued that the federalization of the law of union-member relationships should be limited to the specific provisions found in the LMRDA. But if § 301, fairly construed and absent a later statute such as the LMRDA, covers the suit we now have before us, we should reach that result even with the appearance of a later statute such as the LMRDA unless there is some more persuasive reason derived from the later legislation itself that Congress intended to narrow the reach of § 301. We are unable to discern any satisfactory basis for implying such a partial repeal of that section.Neither are we impressed by respondents' submission that our construction of § 301 will result in the inundation of the federal courts with trivial suits dealing with intraunion affairs. While we are not persuaded that this argument should affect our interpretation of the language of the statute in any event, we find it unconvincing. As respondents must be aware, the interpretation we adopt today has been the law in a number of Federal Circuits for some time and was adopted 10 years ago by the Court of Appeals for the Ninth Circuit in a case specifically involving the IBEW Constitution. See Kinney v. International Brotherhood of Electrical Workers, 669 F.2d 1222 (1981). See also, e. g., DeSantiago v. Laborers Int'l Union of North America,103Local No. 1140, 914 F.2d 125 (CA8 1990); Pruitt v. Carpenters Local Union No. 225, 893 F.2d 1216 (CA111990); Lewis v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 771, 826 F.2d 1310 (CA3 1987). Respondents have pointed to no evidence of the federal courts' being overwhelmed by trivial litigation in this area of the law.We express no view on the merits of petitioner's claims for breach of contract. We need only decide here that the courts below erred in holding that federal jurisdiction under § 301(a), based on the alleged violation of a contract between labor organizations, is unavailable when an individual union member brings suit against his or her union.The judgment of the Court of Appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.It is so ordered | OCTOBER TERM, 1991SyllabusWOODDELL v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 71, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 90-967. Argued October 16, 1991-Decided December 4,1991Petitioner Wooddell, a member of Local 71 of the International Brotherhood of Electrical Workers (IBEW), sued respondents, the local and its officers, alleging, inter alia, that, because of his opposition to proposed union actions, they had violated his rights under Title I of the LaborManagement Reporting and Disclosure Act of 1959 (LMRDA) by discriminating against him in job referrals in the operation of a hiring hall provided for in the local's collective-bargaining contracts with electrical contractors. He also contended that such conduct constituted violations of the IBEW Constitution and the local's bylaws, which were allegedly breaches of contract redressable under § 301 of the LaborManagement Relations Act, 1947 (LMRA). Among other things, Wooddell sought injunctive relief, lost wages and benefits, and damages. The District Court dismissed all claims against all defendants. The Court of Appeals reversed the dismissal of the LMRDA claim but otherwise affirmed the District Court, including its holding that Wooddell had no right to have the LMRDA claim tried to a jury. The Court of Appeals further held that § 30l-which provides that "[sJuits for violation of contracts between ... labor organizations ... may be brought in ... district court" -did not authorize a breach-of-contract action to be brought by an individual union member for an alleged violation of a union constitution.Held:1. Wooddell was entitled to a jury trial on the LMRDA cause of action. Although he seeks injunctive relief as well as damages, the injunctive relief is assertedly incidental to the damages. His claim for lost wages cannot be treated as restitutionary incident to an order reinstating him to a job from which he has been terminated, as the damages sought are for pay for jobs to which the union failed to refer him. Also, an LMRDA action is closely analogous to a personal injury action, a prototypical example of an action at law to which the Seventh Amendment right to jury trial applies. Thus, Teamsters v. Terry, 494 U. S. 558, 565, 570, 571-in which the Court found a right to a jury trial on a claim for an employer's breach of a collective-bargaining agreement94Syllabusunder § 301 and a union's breach of the duty of fair representation-controls this case. Pp. 97-98.2. The subject-matter jurisdiction conferred on the district courts by § 301(a) extends to suits on union constitutions brought by individual union members. Wooddell charged a violation of a contract between unions within the meaning of § 301, since union constitutions are an important form of contract between labor organizations, Plumbers and Pipe fitters v. Plumbers and Pipe fitters, Local 334, 452 U. S. 615, 624, and since Wooddell alleged that the IBEW Constitution requires locals to live up to collective-bargaining agreements, that that constitution and the local's bylaws are contracts which are binding on the local, and that the defendants had breached such contracts by discriminating against him in referrals. Moreover, § 301 is not limited to suits brought by a party to an interunion contract, but extends to individual union members when they are the beneficiaries of such contracts. Cf. Smith v. Evening News Assn., 371 U. S. 195, 200-201. If such members could not sue under § 301, but were required to resort to state court and state law, the possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon the negotiation and administration of interunion contracts. Cf. ibid. There is no merit to respondents' contention that construing § 301 in this fashion signals an unwarranted intrusion on state contract law, since there is no indication in the later enacted LMRDA that Congress meant to narrow § 301's reach. Also unconvincing is respondents' submission that this construction of § 301 will inundate the federal courts with trivial suits dealing with intraunion affairs, since there is no evidence of such a result in the various Federal Circuits that have adopted the interpretation. Pp. 98-103.907 F.2d 151, reversed and remanded.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.Theodore E. Meckler argued the cause for petitioner.With him on the briefs were Paul Alan Levy and Alan B. Morrison.95Full Text of Opinion |
381 | 1957_34 | MR. JUSTICE BRENNAN delivered the opinion of the Court.In this limitation proceeding brought by the respondent under §§ 183-186 of the Limited Liability Act, R.S. §§ 4281-4289, as amended, 46 U.S.C. §§ 181-196, the District Court for the Eastern District of Pennsylvania denied the petitioner's claim for damages filed on behalf of the widow and other dependents of a seaman who lost his life on respondent's tug in a fire caused by the violation of a navigation rule. 141 F. Supp. 582. The Court of Appeals for the Third Circuit affirmed. 235 F.2d 618, rehearing denied, 235 F.2d 619. We granted certiorari. 352 U.S. 965.The seaman lost his life on the tug Arthur N. Herron, which, on the night of November 18, 1952, while towing a scow on the Schuylkill River in Philadelphia, caught fire when an open-flame kerosene lamp on the deck of the scow ignited highly inflammable vapors lying above an extensive accumulation of petroleum products spread over the surface of the river. Several oil refineries and facilities for oil storage, and for loading and unloading petroleum products, are located along the banks of the Schuylkill River. The trial court found that the lamp was not more than three feet above the water. Maintaining the lamp at a height of less than eight feet violated a navigation rule promulgated by the Commandant of the United States Coast Guard. [Footnote 1] The trial court found that Page 355 U. S. 428 the vapor would not have been ignited if the lamp had been carried at the required height.The District Court held that the violation of the rule "whether . . . [it] be called negligence or be said to make the flotilla unseaworthy," did not impose liability, because"the Coast Guard regulation had to do solely with navigation, and was intended for the prevention of collisions, and for no other purpose. In the present case, there was no collision, and no fault of navigation. True, the origin of the fire can be traced to the violation of the regulation, but the question is not causation, but whether the violation of the regulation, of itself, imposes liability."141 F. Supp. at 585.The petitioner urges first that the statutory violation made the flotilla unseaworthy, creating liability without regard to fault. But the remedy for unseaworthiness derives from the general maritime law, and that law recognizes no cause of action for wrongful death, whether Page 355 U. S. 429 occasioned by unseaworthiness or by negligence. The Harrisburg, 119 U. S. 199; [Footnote 2] see Western Fuel Co. v. Garcia, 257 U. S. 233, 257 U. S. 240. Before the Jones Act, [Footnote 3] federal courts of admiralty resorted to the various state death acts to give a remedy for wrongful death. The Hamilton, 207 U. S. 398; The Transfer No. 4, 61 F. 364; see Western Fuel Co. v. Garcia, supra, at 257 U. S. 242; Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479. The Jones Act created a federal right of action for the wrongful death of a seaman based on the statutory action under the Federal Employers' Liability Act. In Lindgren v. United States, 281 U. S. 38, the Court held that the Jones Act remedy for wrongful death was exclusive, and precluded any remedy for wrongful death within territorial Page 355 U. S. 430 waters, [Footnote 4] based on unseaworthiness, whether derived from federal or state law. The petitioner assumes that, under today's general maritime law, the personal representative of a deceased seaman may elect, as the seaman himself may elect, between an action based on the FELA and an action, recognized in The Osceola, 189 U. S. 158, 189 U. S. 175, based upon unseaworthiness. In view of the disposition we are making of this case, we need not consider the soundness of this assumption.The petitioner also urges that, since the violation of the rule requiring the lights to be eight feet above the water resulted in a defect or insufficiency in the flotilla's lighting equipment which in fact caused the seaman's death, liability was created without regard to negligence under the line of decisions of this Court in actions under the FELA based upon violations of either the Safety Appliance Acts [Footnote 5] or the Boiler Inspection Act. [Footnote 6] That line of decisions interpreted the clause of § 1 of the FELA, 45 U.S.C. § 51, which imposes liability on the employer"by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."The cases Page 355 U. S. 431 hold that under this clause, a defect resulting from a violation of either statute which causes the injury or death of an employee creates liability without regard to negligence. San Antonio & A.P. R. Co. v. Wagner, 241 U. S. 476, 241 U. S. 484. Here the defect or insufficiency in the flotilla's lighting equipment due to a violation of the statute resulted in the death of the seaman. The question for our decision is whether, in the absence of any showing of negligence, the Jones Act -- which in terms incorporates the provisions of the FELA -- permits recovery for the death of a seaman resulting from a violation of a statutory duty. We hold that it does.In denying the claim, the lower courts relied upon their views of general tort doctrine. It is true that, at common law, the liability of the master to his servant was founded wholly on tort rules of general applicability and the master was granted the effective defenses of assumption of risk and contributory negligence. This limited liability derived from a public policy, designed to give maximum freedom to infant industrial enterprises,"to insulate the employer as much as possible from bearing the 'human overhead' which is an inevitable part of the cost -- to someone -- of the doing of industrialized business."Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 318 U. S. 59. But it came to be recognized that, whatever the rights and duties among persons generally, the industrial employer had a special responsibility toward his workers, who were daily exposed to the risks of the business and who were largely helpless to provide adequately for their own safety. Therefore, as industry and commerce became sufficiently strong to bear the burden, the law, the reflection of an evolving public policy, came to favor compensation of employees and their dependents for the losses occasioned by the inevitable deaths and injuries of industrial employment, thus shifting to industry the "human overhead" of doing business. For most industries, Page 355 U. S. 432 this change has been embodied in Workmen's Compensation Acts. In the railroad and shipping industries, however, the FELA and Jones Act provide the framework for determining liability for industrial accidents. But instead of a detailed statute codifying common law principles, Congress saw fit to enact a statute of the most general terms, thus leaving in large measure to the courts the duty of fashioning remedies for injured employees in a manner analogous to the development of tort remedies at common law. But it is clear that the general congressional intent was to provide liberal recovery for injured workers, Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 352 U. S. 508-510, and it is also clear that Congress intended the creation of no static remedy, but one which would be developed and enlarged to meet changing conditions and changing concepts of industry's duty toward its workers.The FELA and the Jones Act impose upon the employer the duty of paying damages when injury to the worker is caused, in whole or in part, by the employer's fault. This fault may consist of a breach of the duty of care, analogous but by no means identical to the general common law duty, or of a breach of some statutory duty. The tort doctrine which the lower courts applied imposes liability for violation of a statutory duty only where the injury is one which the statute was designed to prevent. [Footnote 7] However, this Court has repeatedly refused to apply such a limiting doctrine in FELA cases. In FELA cases based upon violations of the Safety Appliance Page 355 U. S. 433 Acts or the Boiler Inspection Act, the Court has held that a violation of either statute creates liability under FELA if the resulting defect or insufficiency in equipment contributes in fact to the death or injury in suit, without regard to whether the injury flowing from the breach was the injury the statute sought to prevent. Since it appears in this case that the defect or insufficiency of the flotilla's lighting equipment resulting from the violation of 33 U.S.C. § 157, actually caused the seaman's death, this principle governs and compels a result in favor of the petitioner's claim.In Louisville & N. R. Co. v. Layton, 243 U. S. 617, a railroad employee on one of five freight cars loaded with coal was thrown to the track and injured when an engine pushed a stock car into the last of the loaded cars and drove the five cars against a standing train. Neither the stock car nor the car which it struck was equipped with automatic couplers, as required by the Federal Safety Appliance Act. Had the cars been so equipped they would have coupled when they came together, and the five cars would not have run against the standing train. The stated purpose of the automatic coupler requirement was to avoid "the necessity of men going between the ends of cars," and the railroad contended that this showed that the Congress intended the requirement only for the benefit of employees injured when between cars for the purpose of coupling or uncoupling them. The Court rejected the argument and affirmed a judgment for the plaintiff.In Minneapolis & St. L. R. Co. v. Gotschall, 244 U. S. 66, a brakeman walking along the tops of the cars of a moving train was thrown off and killed when the train separated because of the opening of a coupler which resulted in an automatic setting of the emergency brakes and a sudden jerk of the train. This Court sustained a Page 355 U. S. 434 judgment against the railroad although the injury was not one which the Safety Appliance Act aims to prevent.In Davis v. Wolfe, 263 U. S. 239, the conductor of a moving train holding on to the grab iron directly over the sill-step on which he stood fell because the grab iron was loose and defective. It was contended that the grab iron was required to aid employees engaged in coupling or uncoupling cars or a service connected therewith, not to aid in the transportation of employees. The Court rejected this contention and held that the Layton and Gotschall cases had settled that the employee". . . can recover if the failure to comply with the requirements of the [Safety Appliance] Act is a proximate cause of the accident, resulting in injury to him while in the discharge of his duty, although not engaged in an operation in which the safety appliances are specifically designed to furnish him protection."Id. at 263 U. S. 243.In Swinson v. Chicago, St. P., M. & O. R. Co., 294 U. S. 529, a freight brakeman was releasing a tightly set hand brake at the end of a tank car. Release of the hand brake required the application of considerable force to the brake wheel. The brakeman put his left foot on the running board and his right foot on the grab iron to set himself better to put pressure on the brake wheel. The foot pressure exerted on the grab iron caused the plank to which it was attached to split and one of the bolts securing the grab iron to be pulled through. As a result, the brakeman lost his balance and was seriously injured in a fall in front of the moving car. The railroad contended, unsuccessfully, that it was not liable because the grab iron had been used by the brakeman for a purpose for which it was not intended, arguing that the duty to supply grab irons was intended by Congress in order to provide employees with an appliance to grasp with the hands, not to provide a foot brace or support to secure leverage in releasing a hand brake. Page 355 U. S. 435In Coray v. Southern Pacific Co., 335 U. S. 520, an employee of the railroad, riding a motor-driven track car behind a moving freight train, was killed in a crash of the track car into the freight train, which stopped suddenly when its brakes locked because of a defect in its braking system. The Supreme Court of Utah affirmed the state trial court's direction of verdict for the railroad upon the ground that, insofar as brakes were concerned, the object of the Safety Appliance Act was not to protect employees from standing trains, but from moving trains. The Utah Supreme Court also reasoned that the stopping of the train in consequence of the leak in the valve was precisely what, as a safety device, it was designed to do. This Court reversed and said, id. at 335 U. S. 524:"The language selected by Congress to fix liability in cases of this kind is simple and direct. Consideration of its meaning by the introduction of dialectical subtleties can serve no useful interpretative purpose. The statute declares that railroads shall be responsible for their employees' deaths 'resulting in whole or in part' from defective appliances such as were here maintained. 45 U.S.C. § 51. And to make its purpose crystal clear, Congress has also provided that 'no such employee . . . shall be held to have been guilty of contributory negligence in any case' where a violation of the Safety Appliance Act, such as the one here, 'contributed to the . . . death of such employee.' 45 U.S.C. § 53. Congress has thus, for its own reasons, imposed extraordinary safety obligations upon railroads, and has commanded that if a breach of these obligations contributes in part to an employee's death, the railroad must pay damages. These air-brakes were defective; for this reason alone, the train suddenly and unexpectedly stopped; a motor track car following at about the same rate of speed and operated by an employee looking in Page 355 U. S. 436 another direction crashed into the train; all of these circumstances were inseparably related to one another in time and space. The jury could have found that decedent's death resulted from any or all of the foregoing circumstances."Finally, in Urie v. Thompson, 337 U. S. 163, the Court considered a claim based upon an alleged violation of an Interstate Commerce Commission regulation promulgated under the Boiler Inspection Act. The regulation provided:"Locomotives shall be equipped with proper sanding apparatus, which shall be maintained in safe and suitable condition for service, and tested before each trip. Sand pipes must be securely fastened in line with the rails."Id. at 337 U. S. 195. The purpose of the requirement was to provide sand for traction. A fireman employed by the railroad for almost thirty years sued to recover damages for silicosis allegedly contracted from the inhalation of silicate dust emitted by allegedly broken or faulty adjusted sanders into the decks and cabs of the many locomotives on which he had worked. The railroad contended that the ICC rule was designed to ensure an adequate auxiliary braking system, not to protect employees against silicosis, and therefore the employee could not recover for an injury not of the kind the ICC rule sought to guard against. The Court rejected the argument as resting on general tort doctrine inapplicable to this case.The decisive question in this case, then, is whether the principles developed in this line of FELA cases permit recovery for violation of this navigation statute, or are limited, as the dissenting opinion would have it, to cases involving the Safety Appliance and Boiler Inspection Acts. Our attention is directed to the provisions of § 4 of the FELA, which makes reference to "any statute enacted for the safety of employees . . . ," and it is urged that this phrase, in some unexplained manner, Page 355 U. S. 437 creates a special relationship between the FELA and the Safety Appliance and Boiler Inspection Acts. Several answers may be given to this contention.First, § 4 relates entirely to the defense of assumption of risk, abolishing this defense where the injury was caused by the employer's negligence or by "violation . . . of any statute enacted for the safety of employees. . . ." It is § 1 of the FELA which creates the cause of action, and this section, on its face, is barren of any suggestion that injuries caused by violation of any statute are to be treated specially. In formulating the rule that violation of the Safety Appliance and Boiler Inspection Acts creates liability for resulting injuries without proof of negligence, the Court relied on judicially evolved principles designed to carry out the general congressional purpose of providing appropriate remedies for injuries incurred by railroad employees. For Congress, in 1908, did not crystalize the application of the Act by enacting specific rules to guide the courts. Rather, by using generalized language, it created only a framework within which the courts were left to evolve, much in the manner of the common law, a system of principles providing compensation for injuries to employees consistent with the changing realities of employment in the railroad industry.Second, it is argued that the Safety Appliance and Boiler Inspection Acts are special safety statutes, and thus may easily be assimilated to the FELA under general common law principles. But there is no magic in the word "safety." In the cases we have discussed, it was regarded as irrelevant that the defects in the appliances did not disable them from performing their intended safety function. For instance, in Gotschall, the coupling defect parting the cars resulted in the automatic setting of the emergency brakes as a safety measure. In Coray, the train stopped due to the operation of the very safety mechanism required by the Page 355 U. S. 438 statute. In Urie, the defect in the sanders which caused sand to come into the locomotive cabs in no wise impaired the designed safety function of the sanders -- to provide sand for traction. We think that the irrelevance of the safety aspect in these cases demonstrates that the basis of liability is a violation of statutory duty, without regard to whether the injury flowing from the violation was the injury the statute sought to guard against. It must therefore be concluded that the nature of the Acts violated is not a controlling consideration; the basis of liability is the FELA. [Footnote 8]The courts, in developing the FELA with a view to adjusting equitably between the worker and his corporate employer the risks inherent in the railroad industry, have plainly rejected many of the refined distinctions necessary in common law tort doctrine for the purpose of allocating risks between persons who are more nearly on an equal footing as to financial capacity and ability to avoid the hazards involved. Among the refinements developed by the common law for the purpose of limiting the risk of liability arising from wrongful conduct is the rule that violation of a statutory duty creates liability only when the statute was intended to protect those in the position of the plaintiff from the type of injury in fact incurred. This limiting approach has long been discarded from the FELA. Instead, the theory of the FELA is that, where the employer's conduct falls short of the high standard Page 355 U. S. 439 required of him by this Act, and his fault, in whole or in part, causes injury, liability ensues. And this result follows whether the fault is a violation of a statutory duty or the more general duty of acting with care, for the employer owes the employee, as much as the duty of acting with care, the duty of complying with his statutory obligations.We find no difficulty in applying these principles, developed under the FELA, to the present action under the Jones Act, for the latter Act expressly provides for seamen the cause of action -- and consequently the entire judicially developed doctrine of liability -- granted to railroad workers by the FELA. The deceased seaman here was in a position perfectly analogous to that of the railroad workers allowed recovery in the line of cases we have discussed, and the principles governing those cases clearly should apply here.The judgment of the Court of Appeals is reversed with direction to remand to the District Court for further proceedings not inconsistent with this opinion.Reversed | U.S. Supreme CourtKernan v. American Dredging Co., 355 U.S. 426 (1958)Kernan v. American Dredging Co.No. 34Argued November 21, 1957Decided February 3, 1958355 U.S. 426SyllabusA seaman lost his life on a tug which caught fire when an open flame kerosene lamp on the deck of a scow it was towing on a river at night ignited highly inflammable vapors lying above an accumulation of petroleum products spread over the surface of the river. The lamp was not more than three feet above the water, and the vapor would not have been ignited had the lamp been carried at the height of eight feet required by Coast Guard regulations. There was no collision or fault of navigation.Held: under the Jones Act, which incorporates the provisions of the Federal Employers' Liability Act, the seaman's employer was liable, without a showing of negligence, for his death resulting from a violation of the Coast Guard regulations pertaining to navigation. Pp. 355 U. S. 427-439.(a) The decisions of this Court in actions under the Federal Employers' Liability Act based upon violations of the Safety Appliance Acts and the Boiler Inspection Act establish that a violation of either Act creates liability without regard to negligence if the violation in fact contributes to the death or injury, without regard to whether the injury flowing from the breach was the injury the statute sought to prevent. Pp. 355 U. S. 430-436.(b) The basis of liability established in those decisions is not confined to cases involving the Safety Appliance Acts or the Boiler Inspection Act, but extends also to deaths resulting from a violation of the Coast Guard regulations here involved. Pp. 355 U. S. 436-439.(c) Under §1 of the Federal Employers' Liability Act, when a statutory violation results in a defect or insufficiency in appliances or other equipment, liability ensues without regard to whether the injury flowing from the violation was the injury the statute sought to guard against. Pp. 355 U. S. 437-439.(d) The Jones Act expressly provides for seamen the cause of action -- and consequently the entire judicially developed doctrine of liability -- granted to railroad workers by the Federal Employers' Liability Act. P. 355 U. S. 439.35 F.2d 618, 619, reversed and remanded. Page 355 U. S. 427 |
382 | 1983_83-141 | JUSTICE O'CONNOR delivered the opinion of the Court.The Fifth Amendment of the United States Constitution provides, in pertinent part, that "private property [shall not] be taken for public use, without just compensation." These cases present the question whether the Public Use Clause of that Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the State of Hawaii from taking, with just compensation, title in real property from Page 467 U. S. 232 lessors and transferring it to lessees in order to reduce the concentration of ownership of fees simple in the State. We conclude that it does not.IAThe Hawaiian Islands were originally settled by Polynesian immigrants from the western Pacific. These settlers developed an economy around a feudal land tenure system in which one island high chief, the ali'i nui, controlled the land and assigned it for development to certain subchiefs. The subchiefs would then reassign the land to other lower ranking chiefs, who would administer the land and govern the farmers and other tenants working it. All land was held at the will of the ali'i nui and eventually had to be returned to his trust. There was no private ownership of land. See generally Brief for Office of Hawaiian Affairs as Amicus Curiae 3-5.Beginning in the early 1800's, Hawaiian leaders and American settlers repeatedly attempted to divide the lands of the kingdom among the crown, the chiefs, and the common people. These efforts proved largely unsuccessful, however, and the land remained in the hands of a few. In the mid-1960's, after extensive hearings, the Hawaii Legislature discovered that, while the State and Federal Governments owned almost 49% of the State's land, another 47% was in the hands of only 72 private landowners. See Brief for the Hou Hawaiians and Maui Loa, Chief of the Hou Hawaiians, as Amici Curiae 32. The legislature further found that 18 landholders, with tracts of 21,000 acres or more, owned more than 40% of this land and that on Oahu, the most urbanized of the islands, 22 landowners owned 72.5% of the fee simple titles. Id. at 32-33. The legislature concluded that concentrated land ownership was responsible for skewing the State's residential fee simple market, inflating land prices, and injuring the public tranquility and welfare. Page 467 U. S. 233To redress these problems, the legislature decided to compel the large landowners to break up their estates. The legislature considered requiring large landowners to sell lands which they were leasing to homeowners. However, the landowners strongly resisted this scheme, pointing out the significant federal tax liabilities they would incur. Indeed, the landowners claimed that the federal tax laws were the primary reason they previously had chosen to lease, and not sell, their lands. Therefore, to accommodate the needs of both lessors and lessees, the Hawaii Legislature enacted the Land Reform Act of 1967 (Act), Haw.Rev.Stat., ch. 516, which created a mechanism for condemning residential tracts and for transferring ownership of the condemned fees simple to existing lessees. By condemning the land in question, the Hawaii Legislature intended to make the land sales involuntary, thereby making the federal tax consequences less severe while still facilitating the redistribution of fees simple. See Brief for Appellants in Nos. 83-141 and 83-283, pp. 3-4, and nn. 6-8.Under the Act's condemnation scheme, tenants living on single-family residential lots within developmental tracts at least five acres in size are entitled to ask the Hawaii Housing Authority (HHA) to condemn the property on which they live. Haw. Rev.Stat. §§ 516-1(2), (11), 516-22 (1977). When 25 eligible tenants, [Footnote 1] or tenants on half the lots in the tract, whichever is less, file appropriate applications, the Act authorizes HHA to hold a public hearing to determine whether acquisition by the State of all or part of the tract will "effectuate the public purposes" of the Act. § 516-22. If HHA finds that these public purposes will be served, it is authorized Page 467 U. S. 234 to designate some or all of the lots in the tract for acquisition. It then acquires, at prices set either by condemnation trial or by negotiation between lessors and lessees, [Footnote 2] the former fee owners' full "right, title, and interest" in the land. § 516-25.After compensation has been set, HHA may sell the land titles to tenants who have applied for fee simple ownership. HHA is authorized to lend these tenants up to 90% of the purchase price, and it may condition final transfer on a right of first refusal for the first 10 years following sale. §§ 516-30, 516-34, 516-35. If HHA does not sell the lot to the tenant residing there, it may lease the lot or sell it to someone else, provided that public notice has been given. § 516-28. However, HHA may not sell to any one purchaser, or lease to any one tenant, more than one lot, and it may not operate for profit. §§ 516-28, 516-32. In practice, funds to satisfy the condemnation awards have been supplied entirely by lessees. See App. 164. While the Act authorizes HHA to issue bonds and appropriate funds for acquisition, no bonds have issued and HHA has not supplied any funds for condemned lots. See ibid.BIn April 1977, HHA held a public hearing concerning the proposed acquisition of some of appellees' lands. HHA made the statutorily required finding that acquisition of appellees' lands would effectuate the public purposes of the Act. Then, in October, 1978, it directed appellees to negotiate with certain lessees concerning the sale of the designated properties. Those negotiations failed, and HHA subsequently ordered appellees to submit to compulsory arbitration.Rather than comply with the compulsory arbitration order, appellees filed suit, in February, 1979, in United States District Page 467 U. S. 235 Court, asking that the Act be declared unconstitutional and that its enforcement be enjoined. The District Court temporarily restrained the State from proceeding against appellees' estates. Three months later, while declaring the compulsory arbitration and compensation formulae provisions of the Act unconstitutional, [Footnote 3] the District Court refused preliminarily to enjoin appellants from conducting the statutory designation and condemnation proceedings. Finally, in December, 1979, it granted partial summary judgment to appellants, holding the remaining portion of the Act constitutional under the Public Use Clause. See 483 F. Supp. 62 (Haw.1979). The District Court found that the Act's goals were within the bounds of the State's police powers and that the means the legislature had chosen to serve those goals were not arbitrary, capricious, or selected in bad faith.The Court of Appeals for the Ninth Circuit reversed. 702 F.2d 788 (1983). First, the Court of Appeals decided that the District Court had permissibly chosen not to abstain from the exercise of its jurisdiction. Then, the Court of Appeals determined that the Act could not pass the requisite judicial scrutiny of the Public Use Clause. It found that the transfers contemplated by the Act were unlike those of takings previously held to constitute "public uses" by this Court. The court further determined that the public purposes offered by the Hawaii Legislature were not deserving of judicial deference. The court concluded that the Act was simply"a naked attempt on the part of the state of Hawaii to take the private property of A and transfer it to B solely for B's private use and benefit."Id. at 798. One judge dissented. Page 467 U. S. 236On applications of HHA and certain private appellants who had intervened below, this Court noted probable jurisdiction. 464 U.S. 932 (1983). We now reverse.IIWe begin with the question whether the District Court abused its discretion in not abstaining from the exercise of its jurisdiction. The appellants have suggested as one alternative that perhaps abstention was required under the standards announced in Railroad Comm'n v. Pullman Co., 312 U. S. 496 (1941), and Younger v. Harris, 401 U. S. 37 (1971). We do not believe that abstention was required.AIn Railroad Comm'n v. Pullman Co., supra, this Court held that federal courts should abstain from decision when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided. By abstaining in such cases, federal courts will avoid both unnecessary adjudication of federal questions and "needless friction with state policies. . . ." Id. at 312 U. S. 500. However, federal courts need not abstain on Pullman grounds when a state statute is not "fairly subject to an interpretation which will render unnecessary" adjudication of the federal constitutional question. See Harman v. Forssenius, 380 U. S. 528, 380 U. S. 535 (1965). Pullman abstention is limited to uncertain questions of state law because "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 424 U. S. 813 (1976).In these cases, there is no uncertain question of state law. The Act unambiguously provides that "[t]he use of the power . . . to condemn . . . is for a public use and purpose." Haw. Rev.Stat. § 516-83(a)(12) (1977); see also §§ 516-83(a)(10), (11), (13). There is no other provision of the Act -- or, for that matter, of Hawaii law -- which would suggest that Page 467 U. S. 237 § 516-83(a)(12) does not mean exactly what it says. Since "the naked question, uncomplicated by [ambiguous language], is whether the Act, on its face, is unconstitutional," Wisconsin v. Constantineau, 400 U. S. 433, 400 U.S. 439 (1971), abstention from federal jurisdiction is not required.The dissenting judge in the Court of Appeals suggested that, perhaps, the state courts could make resolution of the federal constitutional questions unnecessary by their construction of the Act. See 702 F.2d at 811-812. In the abstract, of course, such possibilities always exist. But the relevant inquiry is not whether there is a bare, though unlikely, possibility that state courts might render adjudication of the federal question unnecessary. Rather,"[w]e have frequently emphasized that abstention is not to be ordered unless the statute is of an uncertain nature, and is obviously susceptible of a limiting construction."Zwickler v. Koota, 389 U. S. 241, 389 U. S. 251, and n. 14 (1967). These statutes are not of an uncertain nature and have no reasonable limiting construction. Therefore, Pullman abstention is unnecessary. [Footnote 4]BThe dissenting judge also suggested that abstention was required under the standards articulated in Younger v. Harris, supra. Under Younger abstention doctrine, interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern Page 467 U. S. 238 important state interests. See Middlesex Ethics Committee v. Garden State Bar Assn., 457 U. S. 423, 457 U. S. 432-437 (1982). Younger abstention is required, however, only when state court proceedings are initiated "before any proceedings of substance on the merits have taken place in the federal court." Hicks v. Miranda, 422 U. S. 332, 422 U. S. 349 (1975). In other cases, federal courts must normally fulfill their duty to adjudicate federal questions properly brought before them.In these cases, state judicial proceedings had not been initiated at the time proceedings of substance took place in federal court. Appellees filed their federal court complaint in February, 1979, asking for temporary and permanent relief. The District Court temporarily restrained HHA from proceeding against appellees' estates. At that time, no state judicial proceedings were in process. Indeed, in June, 1979, when the District Court granted, in part, appellees' motion for a preliminary injunction, state court proceedings still had not been initiated. Rather, HHA filed its first eminent domain lawsuit after the parties had begun filing motions for summary judgment in the District Court -- in September, 1979. Whether issuance of the February temporary restraining order was a substantial federal court action or not, issuance of the June preliminary injunction certainly was. See Doran v. Salem Inn, Inc., 422 U. S. 922, 422 U. S. 929-931 (1975). A federal court action in which a preliminary injunction is granted has proceeded well beyond the "embryonic stage," id. at 422 U. S. 929, and considerations of economy, equity, and federalism counsel against Younger abstention at that point.The only extant proceedings at the state level prior to the September, 1979, eminent domain lawsuit in state court were HHA's administrative hearings. But the Act clearly states that these administrative proceedings are not part of, and are not themselves, a judicial proceeding, for "mandatory arbitration shall be in advance of and shall not constitute any part of any action in condemnation or eminent domain." Haw. Rev.Stat. § 516-51(b) (1976). Since Younger is not a Page 467 U. S. 239 bar to federal court action when state judicial proceedings have not themselves commenced, see Middlesex County Ethics Committee v. Garden State Bar Assn., supra, at 457 U. S. 433; Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100, 454 U. S. 112-113 (1981), abstention for HHA's administrative proceedings was not required.IIIThe majority of the Court of Appeals next determined that the Act violates the "public use" requirement of the Fifth and Fourteenth Amendments. On this argument, however, we find ourselves in agreement with the dissenting judge in the Court of Appeals.AThe starting point for our analysis of the Act's constitutionality is the Court's decision in Berman v. Parker, 348 U. S. 26 (1954). In Berman, the Court held constitutional the District of Columbia Redevelopment Act of 1945. That Act provided both for the comprehensive use of the eminent domain power to redevelop slum areas and for the possible sale or lease of the condemned lands to private interests. In discussing whether the takings authorized by that Act were for a "public use," id. at 348 U. S. 31, the Court stated:"We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it Page 467 U. S. 240 be Congress legislating concerning the District of Columbia . . . or the States legislating concerning local affairs. . . . This principle admits of no exception merely because the power of eminent domain is involved. . . ."Id. at 348 U. S. 32 (citations omitted). The Court explicitly recognized the breadth of the principle it was announcing, noting:"Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. . . . Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established."Id. at 348 U. S. 33. The "public use" requirement is thus coterminous with the scope of a sovereign's police powers.There is, of course, a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is "an extremely narrow" one. Id. at 348 U. S. 32. The Court in Berman cited with approval the Court's decision in Old Dominion Co. v. United States, 269 U. S. 55, 269 U. S. 66 (1925), which held that deference to the legislature's "public use" determination is required "until it is shown to involve an impossibility." The Berman Court also cited to United States ex rel. TVA v. Welch, 327 U. S. 546, 327 U. S. 552 (1946), which emphasized that"[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view Page 467 U. S. 241 on that question at the moment of decision, a practice which has proved impracticable in other fields."In short, the Court has made clear that it will not substitute its judgment for a legislature's judgment as to what constitutes a public use "unless the use be palpably without reasonable foundation." United States v. Gettysburg Electric R. Co., 160 U. S. 668, 160 U. S. 680 (1896).To be sure, the Court's cases have repeatedly stated that"one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid."Thompson v. Consolidated Gas Corp., 300 U. S. 55, 300 U. S. 80 (1937). See, e.g., Cincinnati v. Vester, 281 U. S. 439, 281 U. S. 447 (1930); Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239, 196 U. S. 251-252 (1905); Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 164 U. S. 159 (1896). Thus, in Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896), where the"order in question was not, and was not claimed to be, . . . a taking of private property for a public use under the right of eminent domain,"id. at 164 U. S. 416 (emphasis added), the Court invalidated a compensated taking of property for lack of a justifying public purpose. But where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause. See Berman v. Parker, supra; Rindge Co. v. Los Angeles, 262 U. S. 700 (1923); Block v. Hirsh, 256 U. S. 135 (1921); cf. Thompson v. Consolidated Gas Corp., supra, (invalidating an uncompensated taking).On this basis, we have no trouble concluding that the Hawaii Act is constitutional. The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did, [Footnote 5] to reduce the perceived social and economic evils of a Page 467 U. S. 242 land oligopoly traceable to their monarchs. The land oligopoly has, according to the Hawaii Legislature, created artificial deterrents to the normal functioning of the State's residential land market and forced thousands of individual homeowners to lease, rather than buy, the land underneath their homes. Regulating oligopoly and the evils associated with it is a classic exercise of a State's police powers. See Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978); Block v. Hirsh, supra; see also People of Puerto Rico v. Eastern Sugar Associates, 156 F.2d 316 (CA1), cert. denied, 329 U.S. 772 (1946). We cannot disapprove of Hawaii's exercise of this power.Nor can we condemn as irrational the Act's approach to correcting the land oligopoly problem. The Act presumes that, when a sufficiently large number of persons declare that they are willing but unable to buy lots at fair prices, the land market is malfunctioning. When such a malfunction is signaled, the Act authorizes HHA to condemn lots in the relevant tract. The Act limits the number of lots any one tenant can purchase, and authorizes HHA to use public funds to ensure that the market dilution goals will be achieved. This is a comprehensive and rational approach to identifying and correcting market failure.Of course, this Act, like any other, may not be successful in achieving its intended goals. But"whether in fact the provision will accomplish its objectives is not the question: the [constitutional requirement] is satisfied if . . . the . . . [state] Legislature rationally could have believed that the [Act] would promote its objective."Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U. S. 648, 451 U. S. 671-672 (1981); see also Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 449 U. S. 466 (1981); Vance v. Bradley, 440 U. S. 93, 440 U. S. 112 (1979). When the legislature's purpose is legitimate and its Page 467 U. S. 243 means are not irrational, our cases make clear that empirical debates over the wisdom of takings -- no less than debates over the wisdom of other kinds of socioeconomic legislation -- are not to be carried out in the federal courts. Redistribution of fees simple to correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly is a rational exercise of the eminent domain power. Therefore, the Hawaii statute must pass the scrutiny of the Public Use Clause. [Footnote 6]BThe Court of Appeals read our cases to stand for a much narrower proposition. First, it read our "public use" cases, especially Berman, as requiring that government possess and use property at some point during a taking. Since Hawaiian lessees retain possession of the property for private use throughout the condemnation process, the court found that the Act exacted takings for private use. 702 F.2d at 796-797. Second, it determined that these cases involved only"the review of . . . congressional determination[s] that there was a public use, not the review of . . . state legislative determination[s]."Id. at 798 (emphasis in original). Because state legislative determinations are involved in the instant cases, the Court of Appeals decided that more rigorous judicial scrutiny of the public use determinations was appropriate. The court concluded that the Hawaii Legislature's professed purposes were mere "statutory rationalizations." Ibid. We disagree with the Court of Appeals' analysis.The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private Page 467 U. S. 244 purpose. The Court long ago rejected any literal requirement that condemned property be put into use for the general public."It is not essential that the entire community, nor even any considerable portion, . . . directly enjoy or participate in any improvement in order [for it] to constitute a public use."Rindge Co. v. Los Angeles, 262 U.S. at 262 U. S. 707. "[W]hat in its immediate aspect [is] only a private transaction may . . . be raised by its class or character to a public affair." Block v. Hirsh, 256 U.S. at 256 U. S. 155. As the unique way titles were held in Hawaii skewed the land market, exercise of the power of eminent domain was justified. The Act advances its purposes without the State's taking actual possession of the land. In such cases, government does not itself have to use property to legitimate the taking; it is only the taking's purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause.Similarly, the fact that a state legislature, and not the Congress, made the public use determination does not mean that judicial deference is less appropriate. [Footnote 7] Judicial deference is required because, in our system of government, legislatures are better able to assess what public purposes should be advanced by an exercise of the taking power. State legislatures are as capable as Congress of making such determinations within their respective spheres of authority. See Berman v. Parker, 348 U.S. at 348 U. S. 32. Thus, if a legislature, state or federal, determines there are substantial reasons for an exercise of the taking power, courts must defer to its determination that the taking will serve a public use. Page 467 U. S. 245IVThe State of Hawaii has never denied that the Constitution forbids even a compensated taking of property when executed for no reason other than to confer a private benefit on a particular private party. A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government, and would thus be void. But no purely private taking is involved in these cases. The Hawaii Legislature enacted its Land Reform Act not to benefit a particular class of identifiable individuals, but to attack certain perceived evils of concentrated property ownership in Hawaii -- a legitimate public purpose. Use of the condemnation power to achieve this purpose is not irrational. Since we assume for purposes of these appeals that the weighty demand of just compensation has been met, the requirements of the Fifth and Fourteenth Amendments have been satisfied. Accordingly, we reverse the judgment of the Court of Appeals, and remand these cases for further proceedings in conformity with this opinion.It is so ordered | U.S. Supreme CourtHawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984)Hawaii Housing Authority v. MidkiffNo. 83-141Argued March 26, 1984Decided May 30, 1984*467 U.S. 229SyllabusTo reduce the perceived social and economic evils of a land oligopoly traceable to the early high chiefs of the Hawaiian Islands, the Hawaii Legislature enacted the Land Reform Act of 1967 (Act), which created a land condemnation scheme whereby title in real property is taken from lessors and transferred to lessees in order to reduce the concentration of land ownership. Under the Act, lessees living on single-family residential lots within tracts at least five acres in size are entitled to ask appellant Hawaii Housing Authority (HHA) to condemn the property on which they live. When appropriate applications by lessees are filed, the Act authorizes HHA to hold a public hearing to determine whether the State's acquisition of the tract will "effectuate the public purposes" of the Act. If HHA determines that these public purposes will be served, it is authorized to designate some or all of the lots in the tract for acquisition. It then acquires, at prices set by a condemnation trial or by negotiation between lessors and lessees, the former fee owners' "right, title, and interest" in the land, and may then sell the land titles to the applicant lessees. After HHA had held a public hearing on the proposed acquisition of appellees' lands and had found that such acquisition would effectuate the Act's public purposes, it directed appellees to negotiate with certain lessees concerning the sale of the designated properties. When these negotiations failed, HHA ordered appellees to submit to compulsory arbitration as provided by the Act. Rather than comply with this order, appellees filed suit in Federal District Court, asking that the Act be declared unconstitutional and that its enforcement be enjoined. The court temporarily restrained the State from proceeding against appellees' estates, but subsequently, while holding the compulsory arbitration and compensation formulae provisions of the Act unconstitutional, refused to issue a preliminary injunction and ultimately granted partial summary judgment to HHA and private appellants who had intervened, holding Page 467 U. S. 230 the remainder of the Act constitutional under the Public Use Clause of the Fifth Amendment, made applicable to the States under the Fourteenth Amendment. After deciding that the District Court had properly not abstained from exercising its jurisdiction, the Court of Appeals reversed, holding that the Act violates the "public use" requirement of the Fifth Amendment.Held:1. The District Court was not required to abstain from exercising its jurisdiction. Pp. 467 U. S. 236-239.(a) Abstention under Railroad Comm'n v. Pullman Co., 312 U. S. 496, is unnecessary. Pullman abstention is limited to uncertain questions of state law, and here there is no uncertain question of state law, since the Act unambiguously provides that the power to condemn is "for a public use and purpose." Thus, the question, uncomplicated by ambiguous language, is whether the Act, on its face, is unconstitutional. Pp. 467 U. S. 236-237.(b) Nor is abstention required under Younger v. Harris, 401 U. S. 37. Younger abstention is required only when state court proceedings are initiated before any proceedings of substance on the merits have occurred in federal court. Here, state judicial proceedings had not been initiated at the time proceedings of substance took place in the District Court, the District Court having issued a preliminary injunction before HHA filed its first state eminent domain suit in state court. And the fact that HHA's administrative proceedings occurred before the federal suit was filed did not require abstention, since the Act clearly states that those proceedings are not part of, or are not themselves, a judicial proceeding. Pp. 467 U. S. 237-239.2. The Act does not violate the "public use" requirement of the Fifth Amendment. Pp. 467 U. S. 239-244.(a) That requirement is coterminous with the scope of a sovereign's police powers. This Court will not substitute its judgment for a legislature's judgment as to what constitutes "public use" unless the use is palpably without reasonable foundation. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the Public Use Clause. Here, regulating oligopoly and the evils associated with it is a classic exercise of a State's police powers, and redistribution of fees simple to reduce such evils is a rational exercise of the eminent domain power. Pp. 467 U. S. 239-243.(b) The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. Government does not itself have to use property to legitimate the taking; it is only the taking's purpose, and not its mechanics, that must pass scrutiny under Page 467 U. S. 231 the Public Use Clause. And the fact that a state legislature, and not Congress, made the public use determination does not mean that judicial deference is less appropriate. Pp. 467 U. S. 243-244.702 F.2d 788, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except MARSHALL, J., who took no part in the consideration or decision of the cases. |
383 | 1984_83-1132 | JUSTICE O'CONNOR delivered the opinion of the Court.In this case we consider whether an action to enjoin the infringement of an incontestable trade or service mark may be defended on the grounds that the mark is merely descriptive. We conclude that neither the language of the relevant statutes nor the legislative history supports such a defense.IPetitioner operates long-term parking lots near airports. After starting business in St. Louis in 1967, petitioner subsequently opened facilities in Cleveland, Houston, Boston, Memphis, and San Francisco. Petitioner applied in 1969 to the United States Patent and Trademark Office (Patent Office) to register a service mark consisting of the logo of an airplane and the words "Park 'N Fly." [Footnote 1] The registration issued in August 1971. Nearly six years later, petitioner filed an affidavit with the Patent Office to establish the incontestable status of the mark. [Footnote 2] As required by § 15 of the Trademark Act of 1946 (Lanham Act), 60 Stat. 433, as amended, 15 U.S.C. § 1065, the affidavit stated that the mark had been registered and in continuous use for five consecutive years, that there had been no final adverse decision to petitioner's claim of ownership or right to registration, and Page 469 U. S. 192 that no proceedings involving such rights were pending. Incontestable status provides, subject to the provisions of § 15 and § 33(b) of the Lanham Act, "conclusive evidence of the registrant's exclusive right to use the registered mark. . . ." § 33(b), 15 U.S.C. § 1115(b).Respondent also provides long-term airport parking services, but only has operations in Portland, Oregon. Respondent calls its business "Dollar Park and Fly." Petitioner filed this infringement action in 1978 in the United States District Court for the District of Oregon and requested the court permanently to enjoin respondent from using the words "Park and Fly" in connection with its business. Respondent counterclaimed and sought cancellation of petitioner's mark on the grounds that it is a generic term. See § 14(c), 15 U.S.C. § 1064(c). Respondent also argued that petitioner's mark is unenforceable because it is merely descriptive. See § 2(e), 15 U.S.C. § 1052(e). As two additional defenses, respondent maintained that it is in privity with a Seattle corporation that has used the expression "Park and Fly" since a date prior to the registration of petitioner's mark, see § 33(b)(5), 15 U.S.C. § 1115(b)(5), and that it has not infringed because there is no likelihood of confusion. See § 32(1), 15 U.S.C. § 1114(1).After a bench trial, the District Court found that petitioner's mark is not generic and observed that an incontestable mark cannot be challenged on the grounds that it is merely descriptive. App. 75. The District Court also concluded that there was no evidence of privity between respondent and the Seattle corporation. App. 76. Finally, the District Court found sufficient evidence of likelihood of confusion. App. 76. The District Court permanently enjoined respondent from using the words "Park and Fly" and any other mark confusingly similar to "Park 'N Fly." App. 77.The Court of Appeals for the Ninth Circuit reversed. 718 F.2d 327 (1983). The District Court did not err, the Court of Appeals held, in refusing to invalidate petitioner's mark. Id. at 331. The Court of Appeals noted, however, that it Page 469 U. S. 193 previously had held that incontestability provides a defense against the cancellation of a mark, but it may not be used offensively to enjoin another's use. Ibid. Petitioner, under this analysis, could obtain an injunction only if its mark would be entitled to continued registration without regard to its incontestable status. Thus, respondent could defend the infringement action by showing that the mark was merely descriptive. Based on its own examination of the record, the Court of Appeals then determined that petitioner's mark is in fact merely descriptive, and therefore respondent should not be enjoined from using the name "Park and Fly." Ibid.The decision below is in direct conflict with the decision of the Court of Appeals for the Seventh Circuit in Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366, cert. denied, 429 U.S. 830 (1976). We granted certiorari to resolve this conflict, 465 U.S. 1078 (1984), and we now reverse.IICongress enacted the Lanham Act in 1946 in order to provide national protection for trademarks used in interstate and foreign commerce. S.Rep. No. 1333, 79th Cong., 2d Sess., 5 (1946). Previous federal legislation, such as the Federal Trademark Act of 1905, 33 Stat. 724, reflected the view that protection of trademarks was a matter of state concern and that the right to a mark depended solely on the common law. S.Rep. No. 1333, at 5. Consequently, rights to trademarks were uncertain and subject to variation in different parts of the country. Because trademarks desirably promote competition and the maintenance of product quality, Congress determined that "a sound public policy requires that trademarks should receive nationally the greatest protection that can be given them." Id. at 6. Among the new protections created by the Lanham Act were the statutory provisions that allow a federally registered mark to become incontestable. §§ 15, 33(b), 15 U.S.C. §§ 1065, 1115(b).The provisions of the Lanham Act concerning registration and incontestability distinguish a mark that is "the common Page 469 U. S. 194 descriptive name of an article or substance" from a mark that is "merely descriptive." §§ 2(e), 14(e), 15 U.S.C. §§ 1052(e), 1064(e). Marks that constitute a common descriptive name are referred to as generic. A generic term is one that refers to the genus of which the particular product is a species. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (CA2 1976). Generic terms are not registrable, and a registered mark may be canceled at any time on the grounds that it has become generic. See §§ 2, 14(e), 15 U.S.C. §§ 1052, 1064(e). A "merely descriptive" mark, in contrast, describes the qualities or characteristics of a good or service, and this type of mark may be registered only if the registrant shows that it has acquired secondary meaning, i.e., it "has become distinctive of the applicant's goods in commerce." §§ 2(e), (f), 15 U.S.C. §§ 1052(e), (f).This ease requires us to consider the effect of the incontestability provisions of the Lanham Act in the context of an infringement action defended on the grounds that the mark is merely descriptive. Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose. See American Tobacco Co. v. Patterson, 456 U. S. 63, 456 U. S. 68 (1982). With respect to incontestable trade or service marks, § 33(b) of the Lanham Act states that "registration shall be conclusive evidence of the registrant's exclusive right to use the registered mark" subject to the conditions of § 15 and certain enumerated defenses. [Footnote 3] Page 469 U. S. 195 Section 15 incorporates by reference subsections (c) and (e) of § 14, 15 U.S.C. § 1064. An incontestable mark that becomes generic may be canceled at any time pursuant to § 14(c). That section also allows cancellation of an incontestable mark at any time if it has been abandoned, if it is being used to misrepresent the source of the goods or services in connection with which it is used, or if it was obtained fraudulently or contrary to the provisions of § 4, 15 U.S.C. § 1054, or §§ 2(a)-(c), 15 U.S.C. §§ 1052(a)-(c). [Footnote 4] Page 469 U. S. 196One searches the language of the Lanham Act in vain to find any support for the offensive/defensive distinction applied by the Court of Appeals. The statute nowhere distinguishes between a registrant's offensive and defensive use of an incontestable mark. On the contrary, § 33(b)'s declaration that the registrant has an "exclusive right" to use the mark indicates that incontestable status may be used to enjoin infringement by others. A conclusion that such infringement cannot be enjoined renders meaningless the "exclusive right" recognized by the statute. Moreover, the language in three of the defenses enumerated in § 33(b) clearly contemplates the use of incontestability in infringement actions by plaintiffs. See §§ 33(b)(4)-(6), 15 U.S.C. §§ 1115(b)(4)-(6).The language of the Lanham Act also refutes any conclusion that an incontestable mark may be challenged as merely descriptive. A mark that is merely descriptive of an applicant's goods or services is not registrable unless the mark has secondary meaning. Before a mark achieves incontestable status, registration provides prima facie evidence of the registrant's exclusive right to use the mark in commerce. § 33(a), 15 U.S.C. § 1115(a). The Lanham Act expressly provides that before a mark becomes incontestable an opposing party may prove any legal or equitable defense which might have been asserted if the mark had not been registered. Ibid. Thus, § 33(a) would have allowed respondent to challenge petitioner's mark as merely descriptive if the mark had not become incontestable. With respect to incontestable marks, however, § 33(b) provides that registration is conclusive evidence of the registrant's exclusive right to use the mark, subject to the conditions of § 15 and the seven defenses enumerated in § 33(b) itself. Mere descriptiveness is not recognized by either § 15 or § 33(b) as a basis for challenging an incontestable mark.The statutory provisions that prohibit registration of a merely descriptive mark but do not allow an incontestable Page 469 U. S. 197 mark to be challenged on this ground cannot be attributed to inadvertence by Congress. The Conference Committee rejected an amendment that would have denied registration to any descriptive mark, and instead retained the provisions allowing registration of a merely descriptive mark that has acquired secondary meaning. See H.R.Conf.Rep. No. 2322, 79th Cong., 2d Sess., 4 (1946) (explanatory statement of House managers). The Conference Committee agreed to an amendment providing that no incontestable right can be acquired in a mark that is a common descriptive, i.e., generic, term. Id. at 5. Congress could easily have denied incontestability to merely descriptive marks as well as to generic marks had that been its intention.The Court of Appeals in discussing the offensive/defensive distinction observed that incontestability protects a registrant against cancellation of his mark. 718 F.2d at 331. This observation is incorrect with respect to marks that become generic or which otherwise may be canceled at any time pursuant to §§ 14(c) and (e). Moreover, as applied to marks that are merely descriptive, the approach of the Court of Appeals makes incontestable status superfluous. Without regard to its incontestable status, a mark that has been registered five years is protected from cancellation except on the grounds stated in §§ 14(c) and (e). Pursuant to § 14, a mark may be canceled on the grounds that it is merely descriptive only if the petition to cancel is filed within five years of the date of registration. § 14(a), 15 U.S.C. § 1064(a). The approach adopted by the Court of Appeals implies that incontestability adds nothing to the protections against cancellation already provided in § 14. The decision below not only lacks support in the words of the statute; it effectively emasculates § 33(b) under the circumstances of this case.IIINothing in the legislative history of the Lanham Act supports a departure from the plain language of the statutory Page 469 U. S. 198 provisions concerning incontestability. Indeed, a conclusion that incontestable status can provide the basis for enforcement of the registrant's exclusive right to use a trade or service mark promotes the goals of the statute. The Lanham Act provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers. See S.Rep. No. 1333, at 3, 5. National protection of trademarks is desirable, Congress concluded, because trademarks foster competition and the maintenance of quality by securing to the producer the benefits of good reputation. Id. at 4. The incontestability provisions, as the proponents of the Lanham Act emphasized, provide a means for the registrant to quiet title in the ownership of his mark. See Hearings on H.R. 82 before the Subcommittee of the Senate Committee on Patents, 78th Cong., 2d Sess., 21 (1944) (remarks of Rep. Lanham); id. at 21, 113 (testimony of Daptane Robert, ABA Committee on Trade Mark Legislation); Hearings on H.R. 102 et al. before the Subcommittee on Trade-Marks of the House Committee on Patents, 77th Cong., 1st Sess., 73 (1941) (remarks of Rep. Lanham). The opportunity to obtain incontestable status by satisfying the requirements of § 15 thus encourages producers to cultivate the goodwill associated with a particular mark. This function of the incontestability provisions would be utterly frustrated if the holder of an incontestable mark could not enjoin infringement by others so long as they established that the mark would not be registrable but for its incontestable status.Respondent argues, however, that enforcing petitioner's mark would conflict with the goals of the Lanham Act because the mark is merely descriptive and should never have been registered in the first place. [Footnote 5] Representative Lanham, Page 469 U. S. 199 respondent notes, explained that the defenses enumerated in § 33(b) were"not intended to enlarge, restrict, amend, or modify the substantive law of trademarks either as set out in other sections of the act or as heretofore applied by the courts under prior laws."92 Cong.Rec. 7524 (1946). Respondent reasons that, because the Lanham Act did not alter the substantive law of trademarks, the incontestability provisions cannot protect petitioner's use of the mark if it were not originally registrable. Moreover, inasmuch as petitioner's mark is merely descriptive, respondent contends that enjoining others from using the mark will not encourage competition by assisting consumers in their ability to distinguish among competing producers.These arguments are unpersuasive. Representative Lanham's remarks, if read in context, clearly refer to the effect of the defenses enumerated in § 33(b). [Footnote 6] There is no question that the Lanham Act altered existing law concerning trademark rights in several respects. For example, § 22, Page 469 U. S. 200 15 U.S.C. § 1072, provides for constructive notice of registration and modifies the common law rule that allowed acquisition of concurrent rights by users in distinct geographic areas if the subsequent user adopted the mark without knowledge of prior use. See Hanover Star Milling Co. v. Metcalf, 240 U. S. 403, 240 U. S. 415-416 (1916) (describing pre-Lanham Act law). Similarly, § 14 cuts off certain grounds for cancellation five years after registration and thereby modifies the previous rule that the validity of a trademark could be attacked at any time. See White House Milk Products Co. v. Dwinell-Wright Co., 27 C. C. P. A. (Pat.) 1194, 111 F.2d 490 (1940). Most significantly, Representative Lanham himself observed that incontestability was one of "the valuable new rights created by the act." 92 Cong.Rec. 7524 (1946).Respondent's argument that enforcing petitioner's mark will not promote the goals of the Lanham Act is misdirected. Arguments similar to those now urged by respondent were in fact considered by Congress in hearings on the Lanham Act. For example, the United States Department of Justice opposed the incontestability provisions and expressly noted that a merely descriptive mark might become incontestable. Hearings on H.R. 82, at 59-60 (statement of the U.S. Dept. of Justice). This result, the Department of Justice observed, would "go beyond existing law in conferring unprecedented rights on trade-mark owners," and would undesirably create an exclusive right to use language that is descriptive of a product. Id. at 60; see also Hearings on H.R. 102, at 106-107, 109-110 (testimony of Prof. Milton Handler); id. at 107, 175 (testimony of attorney Louis Robertson). These concerns were answered by proponents of the Lanham Act, who noted that a merely descriptive mark cannot be registered unless the Commissioner finds that it has secondary meaning. Id. at 108, 113 (testimony of Karl Pohl, U.S. Trade Mark Assn.). Moreover, a mark can be challenged for Page 469 U. S. 201 five years prior to its attaining incontestable status. Id. at 114 (remarks of Rep. Lanham). The supporters of the incontestability provisions further observed that a generic mark cannot become incontestable and that § 33(b)(4) allows the non-trademark use of descriptive terms used in an incontestable mark. Id. at 110-111 (testimony of Wallace Martin, chairman, ABA Committee on Trade Mark Legislation).The alternative of refusing to provide incontestable status for descriptive marks with secondary meaning was expressly noted in the hearings on the Lanham Act. Id. at 64, 69 (testimony of Robert Byerley, New York Patent Law Assn.); Hearings on S. 895 before the Subcommittee of the Senate Committee on Patents, 77th Cong., 2d Sess., 42 (1942) (testimony of Elliot Moyer, Special Assistant to the Attorney General). Also mentioned was the possibility of including as a defense to infringement of an incontestable mark the "fact that a mark is a descriptive, generic, or geographical term or device." Id. at 45, 47. Congress, however, did not adopt either of these alternatives. Instead, Congress expressly provided in §§ 33(b) and 15 that an incontestable mark could be challenged on specified grounds, and the grounds identified by Congress do not include mere descriptiveness.The dissent echoes arguments made by opponents of the Lanham Act that the incontestable status of a descriptive mark might take from the public domain language that is merely descriptive. Post at 469 U. S. 214-216. As we have explained, Congress has already addressed concerns to prevent the "commercial monopolization," post at 469 U. S. 214, of descriptive language. The Lanham Act allows a mark to be challenged at any time if it becomes generic, and, under certain circumstances, permits the non-trademark use of descriptive terms contained in an incontestable mark. Finally, if "monopolization" of an incontestable mark threatens economic competition, § 33(b)(7), 15 U.S.C. § 1115(b)(7), provides a defense on the grounds that the mark is being used to violate federal Page 469 U. S. 202 antitrust laws. At bottom, the dissent simply disagrees with the balance struck by Congress in determining the protection to be given to incontestable marks.IVRespondent argues that the decision by the Court of Appeals should be upheld because trademark registrations are issued by the Patent Office after an ex parte proceeding and generally without inquiry into the merits of an application. This argument also unravels upon close examination. The facts of this case belie the suggestion that registration is virtually automatic. The Patent Office initially denied petitioner's application because the examiner considered the mark to be merely descriptive. Petitioner sought reconsideration and successfully persuaded the Patent Office that its mark was registrable.More generally, respondent is simply wrong to suggest that third parties do not have an opportunity to challenge applications for trademark registration. If the Patent Office examiner determines that an applicant appears to be entitled to registration, the mark is published in the Official Gazette. § 12(a), 15 U.S.C. § 1062(a). Within 30 days of publication, any person who believes that he would be damaged by registration of the mark may file an opposition. § 13, 15 U.S.C. § 1063. Registration of a mark provides constructive notice throughout the United States of the registrant's claim to ownership. § 22, 15 U.S.C. § 1072. Within five years of registration, any person who believes that he is or will be damaged by registration may seek to cancel a mark. § 14(a), 15 U.S.C. § 1064(a). A mark may be canceled at any time for certain specified grounds, including that it was obtained fraudulently or has become generic. § 14(c), 15 U.S.C. § 1064(c).The Lanham Act, as the dissent notes, post at 469 U. S. 217, authorizes courts to grant injunctions "according to principles of equity." § 34, 15 U.S.C. § 1116. Neither respondent nor the opinion of the Court of Appeals relies on this provision Page 469 U. S. 203 to support the holding below. Whatever the precise boundaries of the courts' equitable power, we do not believe that it encompasses a substantive challenge to the validity of an incontestable mark on the grounds that it lacks secondary meaning. To conclude otherwise would expand the meaning of "equity" to the point of vitiating the more specific provisions of the Lanham Act. [Footnote 7] Similarly, the power of the courts to cancel registrations and "to otherwise rectify the register," § 37, 15 U.S.C. § 1119, must be subject to the specific provisions concerning incontestability. In effect, both respondent and the dissent argue that these provisions offer insufficient protection against improper registration of a merely descriptive mark, and therefore the validity of petitioner's mark may be challenged notwithstanding its incontestable status. Our responsibility, however, is not to evaluate the wisdom of the legislative determinations reflected in the statute, but instead to construe and apply the provisions that Congress enacted.VThe Court of Appeals did not attempt to justify its decision by reference to the language or legislative history of the Lanham Act. Instead, the court relied on its previous decision in Tillamook County Creamery v. Tillamook Cheese & Dairy Assn., 345 F.2d 158, 163 (CA9), cert. denied, 382 U.S. 903 (1965), for the proposition that a registrant may not rely on incontestability to enjoin the use of the mark by others. Examination of Tillamook, however, reveals that there is no persuasive justification for the judicially created distinction between offensive and defensive use of an incontestable mark. Page 469 U. S. 204Tillamook discussed in dicta the offensive/defensive distinction and observed that incontestability protects a registrant against cancellation but cannot be used to obtain relief from an infringing use. Tillamook's authority for this proposition was John Morrell & Co. v. Reliable Packing Co., 295 F.2d 314, 316 (CA7 1961), which did reverse a finding of infringement on the grounds that incontestable status confers only defensive rights. The Court of Appeals for the Seventh Circuit based its holding in John Morrell on Rand McNally & Co. v. Christmas Club, 105 U.S.P.Q. 499 (1955), aff'd, 44 C. C. P. A. 861 (Pat.), 242 F.2d 776 (1957), but the latter case did not in fact involve the use of an incontestable mark in an enforcement action.The Patent Office in Rand McNally denied a petition to cancel a mark challenged as merely descriptive. The petitioner feared that, if the mark became incontestable, use of the same mark in connection with a service different from the one specified in the registration could be enjoined. 105 U.S.P.Q., at 500. The Assistant Commissioner of Patents answered this concern by observing that an incontestable mark does not provide the registrant "with an offensive weapon' of any greater magnitude than that which it has had since the registration issued. . . ." Id. at 501. These comments do not suggest that incontestability may never provide the basis for injunctive relief, but instead indicate that a mark may not be expanded beyond the good or service for which it was originally designated.John Morrell, the judicial authority providing the most direct support for the decision below, was subsequently overruled in Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366 (CA7), cert. denied, 429 U.S. 830 (1976). In Union Carbide the Court of Appeals for the Seventh Circuit acknowledged that its earlier decision in John Morrell was unsupported by the language or legislative history of the Lanham Act and had been based on a misreading of Rand McNally. 531 F.2d at 373, 377. A registrant may rely on Page 469 U. S. 205 the incontestable status of the mark in an infringement action, Union Carbide concluded, and a "[d]efendant faced with an incontestable registered mark cannot defend by claiming that the mark is invalid because it is descriptive.'" Id. at 377 (quoting 1 J. McCarthy, Trademarks and Unfair Competition § 11.16, p. 377 (1st ed.1973)).Other courts have subsequently followed Union Carbide and concluded that a plaintiff may rely on the incontestable status of a trade or service mark in an infringement action. See, e.g., United States Jaycees v. Philadelphia Jaycees, 639 F.2d 134, 137 (CA3 1981); Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1184-1185 (CA5 1980), cert. denied, 450 U.S. 981 (1981). The Patent Office has also rejected any offensive/defensive distinction with respect to the use of an incontestable mark. See Ansull Co. v. Malter International Corp., 199 U.S.P.Q. 596, 599-600 (TTAB 1978). Thus, the doctrine relied on by the Court of Appeals in this case is best described as flawed in its origin and subsequently discredited by its progenitors.VIWe conclude that the holder of a registered mark may rely on incontestability to enjoin infringement and that such an action may not be defended on the grounds that the mark is merely descriptive. Respondent urges that we nevertheless affirm the decision below based on the "prior use" defense recognized by § 33(b)(5) of the Lanham Act. Alternatively, respondent argues that there is no likelihood of confusion and therefore no infringement justifying injunctive relief. The District Court rejected each of these arguments, but they were not addressed by the Court of Appeals. 718 F.2d at 331-332, n. 4. That court may consider them on remand. 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 | U.S. Supreme CourtPark N' Fly Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189 (1985)Park N' Fly Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189 (1985)No. 83-1132Argued October 9, 1984Decided January 8, 1985469 U.S. 189SyllabusPetitioner operates long-term parking lots near airports in St. Louis Cleveland, Houston, Boston, Memphis, and San Francisco. In 1969, petitioner applied to the United States Patent and Trademark Office to register a service mark consisting of the logo of an airplane and the words "Park 'N Fly." The registration issued in 1971, and nearly six years later petitioner filed an affidavit with the Patent and Trademark Office to establish the incontestable status of the mark under § 33(b) of the Trademark Act of 1946 (Lanham Act), which provides that "registration shall be conclusive evidence of the registrant's exclusive right to use the registered mark," subject to the provisions of § 15 and § 33(b) itself. Respondent provides long-term airport parking services called "Dollar Park and Fly," but only operates in Portland, Ore. Petitioner filed an infringement action in Federal District Court seeking to enjoin respondent from using the words "Park and Fly" in connection with its business. The District Court granted the injunction, rejecting, inter alia, respondent's defense that petitioner's mark is unenforceable because it is merely descriptive. The Court of Appeals reversed, holding that incontestability provides a defense against the cancellation of a mark but may not be used offensively to enjoin another's use, that, under this analysis, petitioner could obtain an injunction only if its mark would be entitled to continued registration without regard to its incontestable status, and that therefore respondent could defend by showing that the mark was merely descriptive. The court then determined that petitioner's mark is merely descriptive and respondent should not be enjoined from using the words "Park and Fly."Held: The holder of a registered mark may rely on incontestability to enjoin infringement, and an infringement action may not be defended on the grounds that the mark is merely descriptive. Pp. 469 U. S. 193-205.(a) The Lanham Act nowhere distinguishes between a registrant's offensive and defensive use of an incontestable mark, but, on the contrary, § 33(b)'s declaration that the registrant has an "exclusive right" to use the mark indicates that incontestable status may be used to enjoin infringement. The Act's language also refutes any conclusion that an incontestable mark may be challenged as merely descriptive. Pp. 469 U. S. 193-197. Page 469 U. S. 190(b) Nothing in the Lanham Act's legislative history supports a departure from the plain language of the provisions concerning incontestability. Indeed, a conclusion that incontestable status may provide the basis for enforcement of the registrant's exclusive right to use a mark promotes the Act's goals in providing national protection of trademarks in order to secure to the mark's owner the goodwill of his business and to protect the ability of consumers to distinguish among competing producers. Pp. 469 U. S. 197-202.(c) There is no merit to respondent's argument that the Court of Appeals' decision should be upheld because trademark registrations are issued after an ex parte proceeding and generally without inquiry into the merits of an application. The facts of this case belie the suggestion that registration is virtually automatic, and respondent is simply wrong to suggest that third parties do not have an opportunity to challenge applications for trademark registration. The power of courts under § 34 of the Lanham Act to grant injunctions "according to principles of equity" does not encompass a substantive challenge to the validity of an incontestable mark on the grounds that it lacks secondary meaning. Otherwise, the meaning of "equity" would be expanded to the point of vitiating the Act's more specific provisions. Similarly, the power of courts to cancel registrations and "otherwise rectify the register" under § 37 of the Act must be subject to the specific provisions concerning incontestability. Pp. 469 U. S. 202-203.(d) The Court of Appeals was not justified in relying on its decision in Tillamook County Creamery v. Tillamook Cheese & Dairy Assn., 345 F.2d 158, cert. denied, 382 U.S. 903, for the proposition that a registrant may not rely on incontestability to enjoin the use of a mark. Pp. 469 U. S. 203-205.718 F.2d 327, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 469 U. S. 206. Page 469 U. S. 191 |
384 | 1974_73-2024 | MR. JUSTICE POWELL delivered the opinion of the Court.Petitioners, various organizations and individuals resident in the Rochester, N.Y. metropolitan area, brought this action in the District Court for the Western District of New York against the town of Penfield, an incorporated municipality adjacent to Rochester, and against members of Penfield's Zoning, Planning, and Town Boards. Petitioners claimed that the town's zoning ordinance, by its terms and as enforced by the defendant board members, respondents here, effectively excluded persons of low and moderate income from living in the town, in contravention of petitioners' First, Ninth, and Fourteenth Amendment rights and in violation of 42 U.S.C. §§ 1981, 1982, and 1983. The District Court dismissed the complaint and denied a motion to add petitioner Housing Council in the Monroe County Area, Inc., as party plaintiff and also a motion by petitioner Rochester Home Builders Association, Inc., for leave to intervene as party plaintiff. The Court of Appeals for the Second Circuit affirmed, holding that none of the plaintiffs, and neither Housing Council nor Home Builders Association, had standing to prosecute the action. 495 F.2d 1187 (1974). We granted the petition for certiorari. 419 U.S. 823 (1974). For reasons that differ in certain respects from those upon which the Court of Appeals relied, we affirm.IPetitioners Metro-Act of Rochester, Inc., and eight individual plaintiffs, on behalf of themselves and all persons similarly situated, [Footnote 1] filed this action on January 24, Page 422 U. S. 494 1972, averring jurisdiction in the District Court under 28 U.S.C. §§ 1331 and 1343. The complaint identified Metro-Act as a not-for-profit New York corporation, the purposes of which are"to alert ordinary citizens to problems of social concern; . . . to inquire into the reasons for the critical housing shortage for low and moderate income persons in the Rochester area and to urge action on the part of citizens to alleviate the general housing shortage for low and moderate income persons. [Footnote 2]"Plaintiffs Vinkey, Reichert, Warth, and Harris were described as residents of the city of Rochester, all of whom owned real property in and paid property taxes to that city. [Footnote 3] Plaintiff Ortiz, "a citizen of Spanish/Puerto Rican extraction," App. 7, also owned real property in and paid taxes to Rochester. Ortiz, however, resided in Wayland, N.Y., some 42 miles from Penfield, where he was employed. [Footnote 4] The complaint described plaintiffs Broadnax, Reyes, and Sinkler as residents of Rochester and "persons fitting within the classification of low and moderate income as hereinafter defined. . . ." [Footnote 5] Ibid. Although Page 422 U. S. 495 the complaint does not expressly so state, the record shows that Broadnax, Reyes, and Sinkler are members of ethnic or racial minority groups: Reyes is of Puerto Rican ancestry; Broadnax and Sinkler are Negroes.Petitioners' complaint alleged that Penfield's zoning ordinance, adopted in 1962, has the purpose and effect of excluding persons of low and moderate income from residing in the town. In particular, the ordinance allocates 98% of the town's vacant land to single-family detached housing, and allegedly by imposing unreasonable requirements relating to lot size, setback, floor area, and habitable space, the ordinance increases the cost of single-family detached housing beyond the means of persons of low and moderate income. Moreover, according to petitioners, only 0.3% of the land available for residential construction is allocated to multifamily structures (apartments, townhouses, and the like), and even on this limited space, housing for low and moderate income persons is not economically feasible because of low density and other requirements. Petitioners also alleged that, "in furtherance of a policy of exclusionary zoning," id. at 22, the defendant members of Penfield's Town, Zoning, and Planning Boards had acted in an arbitrary and discriminatory manner: they had delayed action on proposals for low and moderate cost housing for inordinate periods of time; denied such proposals for arbitrary and insubstantial reasons; refused to grant necessary variances and permits, or to allow tax abatements; failed to provide necessary support services for low and moderate cost housing projects; and had Page 422 U. S. 496 amended the ordinance to make approval of such projects virtually impossible.In sum, petitioners alleged that, in violation of their "rights, privileges and immunities secured by the Constitution and laws of the United States," id. at 17, the town and its officials had made"practically and economically impossible the construction of sufficient numbers of low and moderate income . . . housing in the Town of Penfield to satisfy the minimum housing requirements of both the Town of Penfield and the metropolitan Rochester area. [Footnote 6] Petitioners alleged, moreover, that, by precluding low and moderate cost housing, the town's zoning practices also had the effect of excluding persons of minority racial and ethnic groups, since most such persons have only low or moderate incomes."Petitioners further alleged certain harm to themselves. The Rochester property owners and taxpayers -- Vinkey, Reichert, Warth, Harris, and Ortiz -- claimed that, because of Penfield's exclusionary practices, the city of Rochester had been forced to impose higher tax rates on them and others similarly situated than would otherwise have been necessary. The low and moderate income, minority plaintiffs -- Ortiz, Broadnax, Reyes, and Sinkler -- claimed that Penfield's zoning practices had prevented them from acquiring, by lease or purchase, residential property in the town, and thus had forced them and their families to reside in less attractive environments. To relieve these various harms, petitioners asked the District Court to declare the Penfield ordinance unconstitutional, to enjoin the defendants from enforcing the ordinance, to order the defendants to enact and administer a new ordinance designed to alleviate the effects of their past actions, and to award $750,000 in actual and exemplary damages. Page 422 U. S. 497On May 2, 1972, petitioner Rochester Home Builders Association, an association of firms engaged in residential construction in the Rochester metropolitan area, moved the District Court for leave to intervene as a party plaintiff. In essence, Home Builders' intervenor complaint repeated the allegations of exclusionary zoning practices made by the original plaintiffs. It claimed that these practices arbitrarily and capriciously had prevented its member firms from building low and moderate cost housing in Penfield, and thereby had deprived them of potential profits. Home Builders prayed for equitable relief identical in substance to that requested by the original plaintiffs, and also for $750,000 in damages. [Footnote 7] On June 7, 1972, Metro-Act and the other original plaintiffs moved to join petitioner Housing Council in the Monroe County Area, Inc., as a party plaintiff. Housing Council is a not-for-profit New York corporation, its membership comprising some 71 public and private organizations interested in housing problems. An affidavit accompanying the motion stated that 17 of Housing Council's member groups were or hoped to be involved in the development of low and moderate cost housing, and that one of its members -- the Penfield Better Homes Corp. -- "is and has been actively attempting to develop moderate income housing" in Penfield, "but has been stymied by its inability to secure the necessary approvals." [Footnote 8]Upon consideration of the complaints and of extensive supportive materials submitted by petitioners, the District Court held that the original plaintiffs, Home Builders, and Housing Council lacked standing to prosecute Page 422 U. S. 498 the action, that the original complaint failed to state a claim upon which relief could be granted, that the suit should not proceed as a class action, and that, in the exercise of discretion, Home Builders should not be permitted to intervene. The court accordingly denied the motion to add Housing Council as a party plaintiff, denied Home Builders' motion to intervene, and dismissed the complaint. The Court of Appeals affirmed, reaching only the standing questions.IIWe address first the principles of standing relevant to the claims asserted by the several categories of petitioners in this case. In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise. E.g., Barrows v. Jackson, 346 U. S. 249, 346 U. S. 255-256 (1953). In both dimensions, it is founded in concern about the proper -- and properly limited -- role of the courts in a democratic society. See Schlesinger v. Reservists to Stop the War, 418 U. S. 208, 418 U. S. 221-227 (1974); United States v. Richardson, 418 U. S. 166, 418 U. S. 188-197 (1974) (POWELL, J., concurring).In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a "case or controversy" between himself and the defendant within the meaning of Art. III. This is the threshold question in every federal case, determining the power of the court to entertain the suit. As an aspect of justiciability, the standing question is whether the plaintiff has "alleged such a personal stake in the outcome of the controversy" as to warrant his invocation of federal court jurisdiction and to justify exercise of the court's remedial powers on Page 422 U. S. 499 his behalf. Baker v. Carr, 369 U. S. 186, 369 U. S. 24 (1962). [Footnote 9] The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court's judgment may benefit others collaterally. A federal court's jurisdiction therefore can be invoked only when the plaintiff himself has suffered "some threatened or actual injury resulting from the putatively illegal action. . . ." Linda R. S. v. Richard D., 410 U. S. 614, 410 U. S. 617 (1973). See Data Processing Service v. Camp, 397 U. S. 150, 397 U. S. 151-154 (1970). [Footnote 10]Apart from this minimum constitutional mandate, this Court has recognized other limits on the class of persons who may invoke the courts' decisional and remedial powers. First, the Court has held that when the asserted harm is a "generalized grievance" shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction. E.g., Schlesinger v. Reservists to Stop the War, supra; United States v. Richardson, supra; Ex parte Levitt, 302 U.S. 633, 634 (1937). Second, even when the plaintiff has alleged injury sufficient to meet the "case or controversy" requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. E.g., Tileston v. Ullman, 318 U. S. 44 (1943). See United States v. Raines, 362 U. S. 17 (1960); Barrows v. Page 422 U. S. 500 Jackson, supra. Without such limitations -- closely related to Art. III concerns but essentially matters of judicial self-governance -- the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights. See, e.g., Schlesinger v. Reservists to Stop the War, 418 U.S. at 418 U. S. 222. [Footnote 11]Although standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal, e.g., Flast v. Cohen, 392 U. S. 83, 392 U. S. 99 (1968), it often turns on the nature and source of the claim asserted. The actual or threatened injury required by Art. III may exist solely by virtue of "statutes creating legal rights, the invasion of which creates standing. . . ." See Linda R. S. v. Richard D., supra at 410 U. S. 617 n. 3; Sierra Club v. Morton, 405 U. S. 727, 405 U. S. 732 (1972). Moreover, the source of the plaintiff's claim to relief assumes critical importance with respect to the prudential rules of standing that, apart from Art. III's minimum requirements, serve to limit the role of the courts in resolving public disputes. Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief. [Footnote 12] In some circumstances, countervailing Page 422 U. S. 501 considerations may outweigh the concerns underlying the usual reluctance to exert judicial power when the plaintiff's claim to relief rests on the legal rights of third parties. See United States v. Raines, 362 U.S. at 362 U. S. 22-23. In such instances, the Court has found, in effect, that the constitutional or statutory provision in question implies a right of action in the plaintiff. See Pierce v. Society of Sisters, 268 U. S. 510 (1925); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 396 U. S. 237 (1969). See generally 422 U. S. infra. Moreover, Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. III's requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants. E.g., United States v. SCRAP, 412 U. S. 669 (1973). But so long as this requirement is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and, indeed, may invoke the general public interest in support of their claim. E.g., Sierra Club v. Morton, supra at 405 U. S. 737; FCC v. Sanders Radio Station, 309 U. S. 470, 309 U. S. 477 (1940).One further preliminary matter requires discussion. For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. E.g., Jenkins v. McKeithen, 395 U. S. 411, 395 U. S. 421-422 (1969). At the same time, it is within the trial court's power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing. If, after this opportunity, Page 422 U. S. 502 the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed.IIIWith these general considerations in mind, we turn first to the claims of petitioners Ortiz, Reyes, Sinkler, and Broadnax, each of whom asserts standing as a person of low or moderate income and, coincidentally, as a member of a minority racial or ethnic group. We must assume, taking the allegations of the complaint as true, that Penfield's zoning ordinance and the pattern of enforcement by respondent officials have had the purpose and effect of excluding persons of low and moderate income, many of whom are members of racial or ethnic minority groups. We also assume, for purposes here, that such intentional exclusionary practices, if proved in a proper case, would be adjudged violative of the constitutional and statutory rights of the persons excluded.But the fact that these petitioners share attributes common to persons who may have been excluded from residence in the town is an insufficient predicate for the conclusion that petitioners themselves have been excluded, or that the respondents' assertedly illegal actions have violated their rights. Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent. Unless these petitioners can thus demonstrate the requisite case or controversy between themselves personally and respondents, "none may seek relief on behalf of himself or any other member of the class." O'Shea v. Littleton, 414 U. S. 488, 414 U. S. 494 (1974). See, e.g., Bailey v. Patterson, 369 U. S. 31, 369 U. S. 32-33 (1962). Page 422 U. S. 503In their complaint, petitioners Ortiz, Reyes, Sinkler, and Broadnax alleged in conclusory terms that they are among the persons excluded by respondents' actions. [Footnote 13] None of them has ever resided in Penfield; each claims at least implicitly that he desires, or has desired, to do so. Each asserts, moreover, that he made some effort, at some time, to locate housing in Penfield that was at once within his means and adequate for his family's needs. Each claims that his efforts proved fruitless. [Footnote 14] Page 422 U. S. 504 We may assume, as petitioners allege, that respondents' actions have contributed, perhaps substantially, to the cost of housing in Penfield. But there remains the question whether petitioners' inability to locate suitable housing in Penfield reasonably can be said to have resulted, in any concretely demonstrable way, from respondents' alleged constitutional and statutory infractions. Petitioners must allege facts from which it reasonably could be inferred that, absent the respondents' restrictive zoning practices, there is a substantial probability that they would have been able to purchase or lease in Penfield, and that, if the court affords the relief requested, the asserted inability of petitioners will be removed. Linda R. S. v. Richard D., 410 U. S. 614 (1973).We find the record devoid of the necessary allegations. As the Court of Appeals noted, none of these petitioners has a present interest in any Penfield property; none is himself subject to the ordinance's strictures; and none has ever been denied a variance or permit by respondent officials. 495 F.2d at 1191. Instead, petitioners claim that respondents' enforcement of the ordinance against third parties -- developers, builders, and the like -- has had the consequence of precluding the construction of housing suitable to their needs at prices they might be able to afford. The fact that the harm to petitioners may have resulted indirectly does not, in itself, preclude standing. Page 422 U. S. 505 When a governmental prohibition or restriction imposed on one party causes specific harm to a third party, harm that a constitutional provision or statute was intended to prevent, the indirectness of the injury does not necessarily deprive the person harmed of standing to vindicate his rights. E.g., Roe v. Wade, 410 U. S. 113, 410 U. S. 124 (1973). But it may make it substantially more difficult to meet the minimum requirement of Art. III: to establish that, in fact, the asserted injury was the consequence of the defendants' actions, or that prospective relief will remove the harm.Here, by their own admission, realization of petitioners' desire to live in Penfield always has depended on the efforts and willingness of third parties to build low and moderate cost housing. The record specifically refers to only two such efforts: that of Penfield Better Homes Corp., in late 1969, to obtain the rezoning of certain land in Penfield to allow the construction of subsidized cooperative townhouses that could be purchased by persons of moderate income; and a similar effort by O'Brien Homes, Inc., in late 1971. [Footnote 15] But Page 422 U. S. 506 the record is devoid of any indication that these projects, or other like projects, would have satisfied petitioners' needs at prices they could afford, or that, were the court to remove the obstructions attributable to respondents, such relief would benefit petitioners. Indeed, petitioners' descriptions of their individual financial situations and housing needs suggest precisely the contrary -- that their inability to reside in Penfield is the consequence of the economics of the area housing market, rather than of respondent' assertedly illegal acts. [Footnote 16] Page 422 U. S. 507 short, the facts alleged fail to support an actionable causal relationship between Penfield's zoning practices and petitioners' asserted injury.In support of their position, petitioners refer to several decisions in the District Courts and Courts of Appeals acknowledging standing in low income, minority group plaintiffs to challenge exclusionary zoning practices. [Footnote 17] In those cases, however, the plaintiffs challenged zoning restrictions as applied to particular projects that would supply housing within their means, and of which they were intended residents. The plaintiffs thus were able to demonstrate that, unless relief from assertedly illegal actions was forthcoming, their immediate and personal interests would be harmed. Petitioners here assert no like circumstances. Instead, they rely on little more than the remote possibility, unsubstantiated by allegations of fact, that their situation might have been better had respondents acted otherwise, and might improve were the court to afford relief. Page 422 U. S. 508We hold only that a plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would benefit in a tangible way from the court's intervention. [Footnote 18] Absent the necessary allegations of demonstrable, particularized injury, there can be no confidence of "a real need to exercise the power of judicial review" or that relief can be framed "no broader than required by the precise facts to which the court's ruling would be applied." Schlesinger v. Reservists to Stop the War, 418 U.S. at 418 U. S. 221-222.IVThe petitioners who assert standing on the basis of their status as taxpayers of the city of Rochester present a different set of problems. These "taxpayer petitioners" claim that they are suffering economic injury consequent to Penfield's allegedly discriminatory and exclusionary zoning practices. Their argument, in brief, is that Penfield's persistent refusal to allow or to facilitate construction of low and moderate cost housing forces the city of Rochester to provide more such housing than it otherwise would do; that, to provide such housing, Rochester must allow certain tax abatements; and Page 422 U. S. 509 that, as the amount of tax-abated property increases, Rochester taxpayers are forced to assume an increased tax burden in order to finance essential public services."Of course, pleadings must be something more than an ingenious academic exercise in the conceivable." United States v. SCRAP, 412 U.S. at 412 U. S. 688. We think the complaint of the taxpayer petitioners is little more than such an exercise. Apart from the conjectural nature of the asserted injury, the line of causation between Penfield's actions and such injury is not apparent from the complaint. Whatever may occur in Penfield, the injury complained of -- increases in taxation -- results only from decisions made by the appropriate Rochester authorities, who are not parties to this case.But even if we assume that the taxpayer petitioners could establish that Penfield's zoning practices harm them, [Footnote 19] their complaint nonetheless was properly dismissed. Petitioners do not, even if they could, assert any personal right under the Constitution or any statute to be free of action by a neighboring municipality that may have some incidental adverse effect on Rochester. On the contrary, the only basis of the taxpayer petitioners' claim is that Penfield's zoning ordinance and practices violate the constitutional and statutory rights of third parties, namely, persons of low and moderate income who are said to be excluded from Penfield. In short, the claim of these petitioners falls squarely within the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves. As we have observed above, this rule of judicial self-governance is subject to exceptions, the most prominent of which is that Congress may remove it by statute. Here, however, Page 422 U. S. 510 no statute expressly or by clear implication grants a right of action, and thus standing to seek relief, to persons in petitioners' position. In several cases, this Court has allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights. See, e.g., Doe v. Bolton, 410 U. S. 179, 410 U. S. 188 (1973); Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 481 (1965); Barrows v. Jackson, 346 U. S. 249 (1953). But the taxpayer petitioners are not themselves subject to Penfield's zoning practices. Nor do they allege that the challenged zoning ordinance and practices preclude or otherwise adversely affect a relationship existing between them and the persons whose rights assertedly are violated. E.g., Sullivan v. Little Hunting Park, Inc., 396 U.S. at 396 U. S. 237; NAACP v. Alabama, 357 U. S. 449, 357 U. S. 458-460 (1958); Pierce v. Society of Sisters, 268 U.S. at 268 U. S. 534-536. No relationship, other than an incidental congruity of interest, is alleged to exist between the Rochester taxpayers and persons who have been precluded from living in Penfield. Nor do the taxpayer petitioners show that their prosecution of the suit is necessary to insure protection of the rights asserted, as there is no indication that persons who, in fact, have been excluded from Penfield are disabled from asserting their own right in a proper case. [Footnote 20] In sum, we discern no justification for recognizing in the Rochester taxpayers a right of action on the asserted claim.VWe turn next to the standing problems presented by the petitioner associations -- Metro-Act of Rochester, Page 422 U. S. 511 Inc., one of the original plaintiffs; Housing Council in the Monroe County Area, Inc., which the original plaintiffs sought to join as a party plaintiff; and Rochester Home Builders Association, Inc., which moved in the District Court for leave to intervene as plaintiff. There is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy. Moreover, in attempting to secure relief from injury to itself, the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its members' associational ties. E.g., NAACP v. Alabama, supra at 357 U. S. 458-460; Anti-Fascist Committee v. McGrath, 341 U. S. 123, 341 U. S. 183-187 (1951) (Jackson, J., concurring). With the limited exception of Metro-Act, however, none of the associational petitioners here has asserted injury to itself.Even in the absence of injury to itself, an association may have standing solely as the representative of its members. E.g., National Motor Freight Assn. v. United States, 372 U. S. 246 (1963). The possibility of such representational standing, however, does not eliminate or attenuate the constitutional requirement of a case or controversy. See Sierra Club v. Morton, 405 U. S. 727 (1972). The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. Id. at 405 U. S. 734-741. So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction. Page 422 U. S. 512APetitioner Metro-Act's claims to standing on its own behalf as a Rochester taxpayer, and on behalf of its members who are Rochester taxpayers or persons of low or moderate income, are precluded by our holdings in Parts 422 U. S. S. 508|>IV, supra, as to the individual petitioners, and require no further discussion. Metro-Act also alleges, however, that 9% of its membership is composed of present residents of Penfield. It claims that, as a result of the persistent pattern of exclusionary zoning practiced by respondents and the consequent exclusion of persons of low and moderate income, those of its members who are Penfield residents are deprived of the benefits of living in a racially and ethnically integrated community. Referring to our decision in Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972), Metro-Act argues that such deprivation is a sufficiently palpable injury to satisfy the Art. III case or controversy requirement, and that it has standing as the representative of its members to seek redress.We agree with the Court of Appeals that Trafficante is not controlling here. In that case, two residents of an apartment complex alleged that the owner had discriminated against rental applicants on the basis of race, in violation of § 804 of the Civil Rights Act of 1968, 82 Stat. 83, 42 U.S.C. § 3604. They claimed that, as a result of such discrimination,"they had been injured in that (1) they had lost the social benefits of living in an integrated community; (2) they had missed business and professional advantages which would have accrued if they had lived with members of minority groups; (3) they had suffered embarrassment and economic damage in social, business, and professional activities from being 'stigmatized' as residents of a 'white ghetto.'"409 U.S. at 409 U. S. 208. In light of the clear congressional purpose Page 422 U. S. 513 in enacting the 1968 Act, and the broad definition of "person aggrieved" in § 810(a), 42 U.S.C. § 3610(a), we held that petitioners, as "person[s] who claim[ed] to have been injured by a discriminatory housing practice," had standing to litigate violations of the Act. We concluded that Congress had given residents of housing facilities covered by the statute an actionable right to be free from the adverse consequences to them of racially discriminatory practices directed at and immediately harmful to others. 409 U.S. at 409 U. S. 212.Metro-Act does not assert on behalf of its members any right of action under the 1968 Civil Rights Act, nor can the complaint fairly be read to make out any such claim. [Footnote 21] In this, we think, lies the critical distinction between Trafficante and the situation here. As we have Page 422 U. S. 514 observed above, Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute. Linda R. S. v. Richard D., 410 U.S. at 410 U. S. 617 n. 3, citing Trafficante v. Metropolitan Life Ins., Co., supra at 409 U. S. 212 (WHITE, J., concurring). No such statute is applicable here.Even if we assume, arguendo, that, apart from any statutorily created right, the asserted harm to Metro-Act's Penfield members is sufficiently direct and personal to satisfy the case or controversy requirement of Art. III, prudential considerations strongly counsel against according them or Metro-Act standing to prosecute this action. We do not understand Metro-Act to argue that Penfield residents themselves have been denied any constitutional rights, affording them a cause of action under 42 U.S.C. § 1983. Instead, their complaint is that they have been harmed indirectly by the exclusion of others. This is an attempt to raise putative rights of third parties, and none of the exceptions that allow such claims is present here. [Footnote 22] In these circumstances, we conclude that it is inappropriate to allow Metro-Act to invoke the judicial process.BPetitioner Home Builders, in its intervenor complaint, asserted standing to represent its member firms engaged in the development and construction of residential housing in the Rochester area, including Penfield. Home Builders alleged that the Penfield zoning restrictions, Page 422 U. S. 515 together with refusals by the town officials to grant variances and permits for the construction of low and moderate cost housing, had deprived some of its members of "substantial business opportunities and profits." App. 156. Home Builders claimed damages of $750,000, and also joined in the original plaintiffs' prayer for declaratory and injunctive relief.As noted above, to justify any relief, the association must show that it has suffered harm, or that one or more of its members are injured. E.g., Sierra Club v. Morton, 405 U. S. 727 (1972). But, apart from this, whether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If, in a proper case, the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind. E.g., National Motor Freight Assn. v. United States, 372 U. S. 246 (1963). See Data Processing Service v. Camp, 397 U. S. 150 (1970). Cf. Fed.Rule Civ.Proc. 23(b)(2).The present case, however, differs significantly, as here an association seeks relief in damages for alleged injuries to its members. Home Builders alleges no monetary injury to itself, nor any assignment of the damages claims of its members. No award therefore can be made to the association as such. Moreover, in the circumstances of this case, the damages claims are not common to the entire membership, nor shared by all in equal degree. To the contrary, whatever injury may have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individualized Page 422 U. S. 516 proof. Thus, to obtain relief in damages, each member of Home Builders who claims injury as a result of respondents' practices must be a party to the suit, and Home Builders has no standing to claim damages on his behalf.Home Builders' prayer for prospective relief fails for a different reason. It can have standing as the representative of its members only if it has alleged facts sufficient to make out a case or controversy had the members themselves brought suit. No such allegations were made. The complaint refers to no specific project of any of its members that is currently precluded either by the ordinance or by respondents' action in enforcing it. There is no averment that any member has applied to respondents for a building permit or a variance with respect to any current project. Indeed, there is no indication that respondents have delayed or thwarted any project currently proposed by Home Builders' members, or that any of its members has taken advantage of the remedial processes available under the ordinance. In short, insofar as the complaint seeks prospective relief, Home Builders has failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention. See, e.g., United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 86-91 (1947); Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 312 U. S. 273 (1941).A like problem is presented with respect to petitioner Housing Council. The affidavit accompanying the motion to join it as plaintiff states that the Council includes in its membership "at least seventeen" groups that have been, are, or will be involved in the development of low and moderate cost housing. But, with one exception, the complaint does not suggest that any of these groups has focused its efforts on Penfield or has any specific Page 422 U. S. 517 plan to do so. Again with the same exception, neither the complaint nor any materials of record indicate that any member of Housing Council has take any step toward building housing in Penfield, or has had dealings of any nature with respondents. The exception is the Penfield Better Homes Corp. As we have observed above, it applied to respondents in late 1969 for a zoning variance to allow construction of a housing project designed for persons of moderate income. The affidavit in support of the motion to join Housing Council refers specifically to this effort, and the supporting materials detail at some length the circumstances surrounding the rejection of Better Homes' application. It is therefore possible that, in 1969, or within a reasonable time thereafter, Better Homes itself and possibly Housing Council as its representative would have had standing to seek review of respondents' action. The complaint, however, does not allege that the Penfield Better Homes project remained viable in 1972 when this complaint was filed, or that respondents' actions continued to block a then-current construction project. [Footnote 23] In short, neither the complaint nor the record supplies any basis from which to infer that the controversy between respondents and Better Homes, however vigorous it may once have been, remained a live, concrete dispute when this complaint was filed. ,VIThe rules of standing, whether as aspects of the Art. III case or controversy requirement or as reflections of prudential Page 422 U. S. 518 considerations defining and limiting the role of the courts, are threshold determinants of the propriety of judicial intervention. It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers. We agree with the District Court and the Court of Appeals that none of the petitioners here has met this threshold requirement. Accordingly, the judgment of the Court of Appeals isAffirmed | U.S. Supreme CourtWarth v. Seldin, 422 U.S. 490 (1975)Warth v. SeldinNo. 73-2024Argued March 17, 1975Decided June 25, 1975422 U.S. 490SyllabusThis action for declaratory and injunctive relief and damages was brought by certain of the petitioners against respondent town of Penfield (a suburb of Rochester, N.Y.), and respondent members of Penfield's Zoning, Planning, and Town Boards, claiming that the town's zoning ordinance, by its terms and as enforced, effectively excluded persons of low and moderate income from living in the town, in violation of petitioners' constitutional rights and of 42 U.S.C. §§ 1981, 1982, and 1983. Petitioners consist of both the original plaintiffs -- (1) Metro-Act of Rochester, a not-for-profit corporation among whose purposes is fostering action to alleviate the housing shortage for low and moderate income persons in the Rochester area; (2) several individual Rochester taxpayers; and (3) several Rochester area residents with low or moderate incomes who are also members of minority racial or ethnic groups -- and Rochester Home Builders Association (Home Builders), embracing a number of residential construction firms in the Rochester area, which unsuccessfully sought to intervene as a party plaintiff, and the Housing Council in the Monroe County Area (Housing Council), a not-for-profit corporation consisting of a number of organizations interested in housing problems, which was unsuccessfully sought to be added as a party plaintiff. The District Court dismissed the complaint on the ground, inter alia, that petitioners lacked standing to prosecute the action, and the Court of Appeals affirmed.Held: Whether the rules of standing are considered as aspects of the constitutional requirement that a plaintiff must make out a "case or controversy" within the meaning of Art. III, or, apart from such requirement, as prudential limitations on the courts' role in resolving disputes involving "generalized grievances" or third parties' legal rights or interests, none of the petitioners has met the threshold requirement of such rules that to have standing a complainant must clearly allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers. Pp. 422 U. S. 498-518. Page 422 U. S. 491(a) As to petitioner Rochester residents who assert standing as persons of low or moderate income and, coincidentally, as members of minority racial or ethnic groups, the facts alleged fail to support an actionable causal relationship between Penfield's zoning practices and these petitioners' alleged injury. A plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that such practices harm him, and that he personally would benefit in a tangible way from the court's intervention. Here, these petitioners rely on little more than the remote possibility, unsubstantiated by allegations of fact, that their situation might have been better had respondents acted otherwise, and might improve were the court to afford relief. Pp. 422 U. S. 502-508.(b) With respect to petitioners who assert standing on the basis of their status as Rochester taxpayers, claiming that they are suffering economic injury through increased taxes resulting from Penfield's zoning practices having forced Rochester to provide more tax-abated low or moderate cost housing than it otherwise would have done, the line of causation between Penfield's actions and such injury is not apparent. But even assuming that these petitioners could establish that the zoning practices harm them, the basis of their claim is that the practices violate the constitutional and statutory rights of third parties -- persons of low and moderate income who allegedly are excluded from Penfield. Hence, their claim falls squarely within the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves. Pp. 422 U. S. 508-510.(c) Petitioner Metro-Act's claims to standing as a Rochester taxpayer and on behalf of its members who are Rochester taxpayers or persons of low or moderate income are precluded for the reasons applying to the denial of standing to the individual petitioner Rochester taxpayers and persons of low and moderate income. In addition, with respect to Metro-Act's claim to standing because 9% of its membership is composed of Penfield residents, prudential considerations strongly counsel against according such residents or Metro-Act standing where the complaint is that they have been harmed indirectly by the exclusion of others, thus attempting, in the absence of a showing of any exception allowing such a claim, to raise the putative rights of third parties. Trafficante v. Metropolitan Life Ins., 409 U. S. 205, distinguished. Pp. 422 U. S. 512-514. Page 422 U. S. 492(d) Petitioner Home Builders, which alleges no monetary injury to itself, has no standing to claim damages on behalf of its members, since whatever injury may have been suffered is peculiar to the individual member concerned, thus requiring individualized proof of both the fact and extent of injury and individual awards. Nor does Home Builders have standing to claim prospective relief absent any allegation of facts sufficient to show the existence of any injury to members of sufficient immediacy and ripeness to warrant judicial intervention. Pp. 422 U. S. 514-516.(e) Petitioner Housing Council has no standing where the complaint and record do not indicate that any of its members, with one exception, has made any effort involving Penfield, has taken any steps toward building there, or had any dealings with respondents. With respect to the one exception, this petitioner averred no basis for inferring that an earlier controversy between it and respondents remained a live, concrete dispute. Pp. 422 U. S. 516-517.495 F.2d 1187, affirmed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 422 U. S. 518. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 422 U. S. 519. Page 422 U. S. 493 |
385 | 1984_83-703 | JUSTICE BRENNAN delivered the opinion of the Court.These cases require us to decide whether 28 U.S.C. § 2342(4) and 42 U.S.C. § 2239 grant the federal courts of appeals exclusive subject matter jurisdiction initially to review decisions of the Nuclear Regulatory Commission to deny citizen petitions requesting that the Commission "institute a proceeding . . . to modify, suspend or revoke a license. . . ." 10 CFR § 2.206(a) (1984).IRespondent Joette Lorion, on behalf of the Center for Nuclear Responsibility, wrote the Nuclear Regulatory Commission on September 11, 1981, to express fears about potential safety threats at petitioner Florida Power and Light Company's Turkey Point nuclear reactor near her home outside Miami, Florida. Her detailed letter urged the Commission to suspend Turkey Point's operating license [Footnote 1] and specified several reasons for such action. [Footnote 2] The Commission treated Lorion's letter as a citizen petition for enforcement action pursuant to the authority of § 2.206 of the Commission's rules of practice. This rule provides:"Any person may file a request for the Director of Nuclear Reactor Regulation . . . to institute a proceeding pursuant to [10 CFR] § 2.202 to modify, suspend or revoke a license, or for such other action as may be proper. . . . The requests shall specify the action requested Page 470 U. S. 732 and set forth the facts that constitute the basis for the request."10 CFR § 2.206(a) (1984). This rule also requires the Director of Nuclear Reactor Regulation, within a reasonable time after receiving such a request, either to institute the requested proceeding, [Footnote 3] or to provide a written explanation of the decision to deny the request. § 2.206(b). The Commission interprets § 2.206 as requiring issuance of an order to show cause when a citizen petition raises "substantial health or safety issues." Consolidated Edison Co. of New York, 2 N.R.C. 173, 174 (1975)In these cases, the Director decided not to take the action Lorion had requested. His written explanation -- based on a 547-page record compiled primarily from existing Commission materials -- responded to each of Lorion's points. [Footnote 4] See In re Florida Power & Light Co. (Turkey Point Plant, Unit 4), 14 N.R.C. 1078 (1981). Lorion unsuccessfully sought review by the Commission of the Director's denial of the § 2.206 request, and then petitioned the Court of Appeals for the District of Columbia Circuit for review. Before that court, Lorion argued that the Director's denial of the § 2.206 request was arbitrary and capricious pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). Page 470 U. S. 733 Lorion also claimed that the Commission improperly denied her the statutory right to a full public hearing on the § 2.206 request. The Commission defended the substantive integrity of its decision, and argued that Lorion had no right to a hearing.Declining to reach the merits of this dispute, the Court of Appeals decided, sua sponte, that it lacked initial subject matter jurisdiction over Lorion's challenge to the denial of the § 2.206 petition. This result was based on the court's reading of the three statutory provisions that define the initial jurisdiction of the federal courts of appeals over Commission decisions. Under 28 U.S.C. § 2342(4), a provision of the Administrative Orders Review Act (commonly known and referred to herein as the Hobbs Act), the courts of appeals have exclusive jurisdiction over petitions seeking review of"all final orders of the Atomic Energy Commission [now the Nuclear Regulatory Commission] made reviewable by section 2239 of title 42."Title 42 U.S.C. § 2239(b) provides that the Hobbs Act governs review of "[a]ny final order entered in any proceeding of the kind specified in subsection (a) [of section 2239]." Subsection (a) proceedings are those "for the granting, suspending, revoking, or amending of any license." 42 U.S.C. § 2239(a)(1). The Court of Appeals concluded that the Commission's denial of Lorion's § 2.206 petition was not an order entered in a "proceeding for the granting, suspending, revoking, or amending of any license" within the meaning of 42 U.S.C. § 2239(a), and therefore dismissed Lorion's petition for review for lack of subject matter jurisdiction. 229 U.S.App.D.C. 440, 712 F.2d 1472 (1983).The court's decision turned on its interpretation of the interrelation between the review and hearing provisions of § 2239. Section 2239(a)(1) provides that,"[i]n any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding."On the basis of this statutory Page 470 U. S. 734 hearing requirement, the court reasoned that Commission action was a § 2239(a)(1) "proceeding" only if an interested person could obtain a hearing. Because the Court of Appeals for the District of Columbia Circuit had earlier held that a § 2.206 petitioner had no right to a hearing, see Poter County Chapter of the Izaak Walton League of America, Inc. v. NRC, 196 U.S.App.D.C. 456, 462, and n. 16, 606 F.2d 1363, 1369, and n. 16 (1979), and because the Commission urged in its brief that,""[u]nless and until granted, [Lorion's § 2.206 request] is not a proceeding' where the requester has any right to present evidence,"" 229 U.S.App.D.C. at 446, 712 F.2d at 1478 (citation omitted), the Court of Appeals held that the denial of Lorion's § 2.206 request was not an order entered in a "proceeding" within the meaning of § 2239(a). Section 2239(b) was therefore found not to authorize initial court of appeals review of the order, and the court declined to hear the case. [Footnote 5] This holding arguably departed from precedent within the Circuit, [Footnote 6] and in any event created a direct conflict with the holdings of two other Circuits. [Footnote 7] We granted certiorari to resolve the conflict. 466 U.S. 903 (1984). We reverse.IIThe issue before us is whether the Commission's denial of a § 2.206 request should be considered a final order initially reviewable exclusively in the court of appeals pursuant to 42 Page 470 U. S. 735 U.S.C. § 2239(b) and 28 U.S.C. § 2342(4). [Footnote 8] This issue requires us to decide whether such an order is issued in a "proceeding . . . for the granting, suspending, revoking, or amending of any license." 42 U.S.C. § 2239(a)(1). Enacting § 2239 in 1954, Congress did not focus specifically on this question; the Commission did not establish the § 2.206 citizen petition procedure until 20 years later. See 39 Fed.Reg. 12353 (1974). [Footnote 9] Our task therefore is to decide whether Commission denials of § 2.206 petitions are final orders of the kind Congress intended to be reviewed initially in the court of appeals pursuant to § 2239(b).AWe begin, as did the Court of Appeals, with the language of the statute. See Reiter v. Sonotone Corp., 442 U. S. 330, 442 U. S. 337 (1979). The crucial statutory language in subsection (b) Page 470 U. S. 736 of § 2239 is:"Any final order entered in any proceeding of the kind specified in subsection (a) of this section shall be subject to judicial review in the manner prescribed in [the Hobbs Act, 28 U.S.C. § 2341 et seq.]."Though subsection (b) would seem generally to locate review of licensing proceedings in the courts of appeals pursuant to 28 U.S.C. § 2342(4), the cross-reference to "proceeding[s] of the kind specified in subsection (a)" is problematic. In a vexing semantic conjunction, the sentence in subsection (a) to which subsection (b) refers sets forth both the scope of Commission licensing proceedings and the hearing requirement for such proceedings. See 42 U.S.C. § 2239(a)(1) ("In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license . . . the Commission shall grant a hearing to any person whose interest may be affected by the proceeding").The Court of Appeals found this statutory language "clearcut." 229 U.S.App.D.C. at 445, 712 F.2d at 1477. We do not find it so. Though the linkage in § 2239 of the definition of proceeding and hearing could be read as the Court of Appeals read it, see supra at 470 U. S. 733-734, § 2239 could as easily be read as reflecting two independent congressional purposes: (1) to provide for hearings in licensing proceedings if requested by certain individuals (those "whose interest may be affected"); and (2) to place judicial review of final orders in all licensing proceedings in the courts of appeals pursuant to the Hobbs Act irrespective of whether a hearing before the agency occurred or was requested. On this alternative reading, the cross-reference in subsection (b) to "proceeding[s] of the kind specified in subsection (a)," 42 U.S.C. § 2239(b), was meant only to refer to the language "any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license," § 2239(a)(1). If read this way, subsection (b) reflects no congressional intent to limit initial court of appeals review to Commission actions in which a hearing took place. Page 470 U. S. 737To discern the correct interpretation of this statute, we must therefore decide whether Congress intended to authorize initial court of appeals review by reference to the procedures accompanying agency action (i.e., by reference to whether a hearing was held) or by reference to the subject matter of the agency action (i.e., by reference to whether the order was issued in a licensing proceeding). Adopting the former interpretation, the Court of Appeals relied solely on what it took to be the plain meaning of § 2239. Yet plain meaning, like beauty, is sometimes in the eye of the beholder. The court below inferred "plain meaning" from the conjunction of the hearing requirement and the description of the scope of licensing proceedings in subsection (a) without consulting indicia of congressional intent in the legislative history or general principles respecting the proper forum for judicial review of agency action. Because we find the statute ambiguous on its face, we seek guidance in the statutory structure, relevant legislative history, congressional purposes expressed in the choice of Hobbs Act review, and general principles respecting the proper allocation of judicial authority to review agency orders. We conclude that these sources indicate that Congress intended to provide for initial court of appeals review of all final orders in licensing proceedings whether or not a hearing before the Commission occurred or could have occurred.BRelevant evidence of congressional intent in the legislative history, though fragmentary, supports this interpretation. The legislative metamorphoses of the various bills that eventually became the Atomic Energy Act of 1954 strongly suggest that Congress intended to define the scope of initial court of appeals review according to the subject matter of the Commission action, and not according to whether the Commission held a hearing. As originally introduced in both the House and the Senate, the provision governing judicial Page 470 U. S. 738 review (§ 189 of the proposed Act) provided that"[a]ny proceeding to enjoin, set aside, annul or suspend any order of the Commission shall be brought as provided by [the Hobbs Act, 28 U.S.C. § 2341 et seq.]."H.R. 8862, 83d Cong., 2d Sess., § 189 (1954); S. 3323, 83d Cong., 2d Sess., § 189 (1954). After hearings by the Joint Committee on Atomic Energy, the judicial review provision was amended to provide for initial court of appeals review of "[a]ny final order granting, denying, suspending, revoking, modifying, or rescinding any license. . . ." Joint Committee on Atomic Energy, 83d Cong., 2d Sess., § 189 (Comm. Print of May 21, 1954). Though this change was unexplained, it appears to have been intended to limit the scope of judicial review to final orders entered in licensing proceedings; the earlier version had more broadly authorized review of "any order of the Commission." Soon after the bill incorporating this provision was submitted to the full Congress, a shortcoming in the proposed scope of review became apparent. Judicial review would not extend to final orders in proceedings that terminated short of a suspension, revocation, or amendment of a license; those seeking to challenge Commission decisions not to suspend, revoke, or amend could not obtain initial court of appeals review. Remedying this deficiency, Senator Hickenlooper proposed an amendment to expand the authorization for review to final orders issued in "any proceeding under this act, for the granting, suspending, revoking, or amending of any license. . . ." Amendment to S. 3690, 83d Cong., 2d Sess., § 189 (July 16, 1954) (emphasis added).The hearing requirement under the Act developed independently of the review provisions until the last step of the legislative process. As introduced in the House and the Senate, the original bills did not provide for a hearing in licensing determinations. See H.R. 8862, supra; S. 3323, supra. The lack of a hearing requirement prompted expressions of concern at Committee hearings, S. 3323 and H.R. 8862, To Amend the Atomic Energy Act of 1946: Hearings on Page 470 U. S. 739 S. 3323 and H.R. 8862 before the Joint Committee on Atomic Energy, 83d Cong., 2d Sess., 65, 113-114, 152-153, 226-227, 328-329, 352-353, 400-401, 416-417 (1954), and led to an amendment to § 181 of the proposed Act providing for a hearing in "any agency action." H.R. 9757, 83d Cong., 2d Sess., § 181 (1954). This provision was soon recognized as too broad a response to the perceived need, see 100 Cong.Rec. 10686 (1954) (remarks of Sen. Pastore) ("That wording was thought to be too broad, broader than it was intended to make it"), and the hearing requirement was tailored to the scope of proceedings authorized under the licensing Subchapter. Senator Hickenlooper accomplished this narrowing with the same amendment he used to broaden the scope of reviewable licensing determinations. He simply proposed to add the hearing requirement to § 189, which until then had governed only judicial review; in this way, the hearing authorization was limited to licensing proceedings. Amendment to S. 3690, supra, § 189. The proposed amendment was accepted, and the current § 2239 reflects its precise wording.The evolution of the judicial review provision reveals a congressional intent to provide for initial court of appeals review of all final orders in licensing proceedings. When Congress decided on the scope of judicial review, it did so solely by reference to the subject matter of the Commission action, and not by reference to the procedural particulars of the Commission action. That the hearing provision evolved independently reinforces the conclusion that Congress had no intention to limit initial court of appeals review to cases in which a hearing occurred or could have occurred. The only possible evidence of congressional intent to limit court of appeals review by reference to the procedures used is the last-minute marriage of the hearing and review provisions in the Hickenlooper Amendment. Nothing in the legislative history affirmatively suggests that Congress intended this conjunction of the hearing and review provisions to limit initial Page 470 U. S. 740 court of appeals review to final orders resulting from proceedings in which a hearing occurred. To the contrary, this semantic conjunction indicates no more than a congressional intent to provide for a hearing in the types of proceedings in which initial court of appeals review would take place -- that is, licensing proceedings. See 100 Cong.Rec. 10686 (1954) (remarks of Sen. Pastore) ("The amendment limits the provision to hearings on licenses in which a review shall take place").CWhether subject matter jurisdiction over denials of § 2.206 petitions properly lies in the district courts or the courts of appeals must also be considered in light of the basic congressional choice of Hobbs Act review in 42 U.S.C. § 2239(b). The Hobbs Act specifically contemplated initial court of appeals review of agency orders resulting from proceedings in which no hearing took place. See 28 U.S.C. § 2347(b) ("When the agency has not held a hearing . . . the court of appeals shall . . . pass on the issues presented, when a hearing is not required by law and . . . no genuine issue of material fact is presented"). One purpose of the Hobbs Act was to avoid the duplication of effort involved in creation of a separate record before the agency and before the district court. See H.R.Rep. No. 2122, 81st Cong., 2d Sess., 4 (1950) ("[T]he submission of the cases upon the records made before the administrative agencies will avoid the making of two records, one before the agency and one before the court, and thus going over the same ground twice"). Cf. Harrison v. PPG Industries, Inc., 446 U. S. 578, 446 U. S. 593 (1980) ("The most obvious advantage of direct review by a court of appeals is the time saved compared to review by a district court, followed by a second review on appeal").Given the choice of the Hobbs Act as the primary method of review of licensing orders, we have no reason to think Congress in the Atomic Energy Act would have intended to preclude initial court of appeals review of licensing proceedings Page 470 U. S. 741 in which a Commission hearing did not occur when the Hobbs Act specifically provides for such review and the consequence of precluding it would be unnecessary duplication of effort.DThe legislative history and the basic congressional choice of Hobbs Act review lead us to conclude that Congress intended to vest in the courts of appeals initial subject matter jurisdiction over challenges to Commission denials of § 2.206 petitions. An examination of the consequences that would follow upon adoption of the contrary rule proposed by the Court of Appeals in these cases confirms the soundness of this conclusion. The Court of Appeals did not specify whether it thought § 2239 vested the courts of appeals with initial jurisdiction over only proceedings in which a hearing actually occurred or over proceedings in which a hearing could have occurred had one been requested. Either approach results in consequences that cannot be squared with general principles respecting judicial review of agency action.If initial review in the court of appeals hinged on whether a hearing before the agency actually occurred, then some licensing proceedings will be reviewed in the courts of appeals, while others will not, depending on whether a hearing is requested. It is clear that § 2239 contemplates the possibility of proceedings without hearings. Absent a request from a person whose interest may be affected by the proceeding, no hearing is required. 42 U.S.C. § 2239(a)(1) ("In any proceeding under this chapter . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding"). Thus if no one requests a hearing or if the only request comes from a person whose interest cannot be affected by the issues before the Commission in the proceeding, no hearing will be held. See, e.g., Bellotti v. NRC, 233 U.S.App.D.C. 274, 725 F.2d 1380 (1983). The locus of judicial review would thus depend on the "fortuitous circumstance" of whether an interested person Page 470 U. S. 742 requested a hearing, see Crown Simpson Pulp Co. v. Costle, 445 U. S. 193, 445 U. S. 196-197 (1980). This sorting process would result in some final orders in licensing proceedings receiving two layers of judicial review, and some receiving only one."Absent a far clearer expression of congressional intent, we are unwilling to read the Act as creating such a seemingly irrational bifurcated system."Id. at 445 U. S. 197.If initial review in the court of appeals hinged on whether a hearing could have taken place had an interested person requested one, different but equally irrational consequences follow. All final orders in full-blown Commission licensing proceedings in which the issue is the granting, suspending, revoking, or amending of a license would be reviewed initially in the court of appeals, irrespective of whether a hearing occurred before the agency. But final orders in summary proceedings and informal Commission rulemaking authorized in § 2239(a) would be reviewed initially in the district court, because the Commission does not currently provide for a hearing in such situations. [Footnote 10]At least two implausible results would flow from excluding orders in such situations from initial review in the court of appeals. First, the resulting duplication of judicial review in the district court and court of appeals, with its attendant delays, would defeat the very purpose of summary or informal Page 470 U. S. 743 procedures before the agency -- saving time and effort in cases not worth detailed formal consideration or not requiring a hearing on the record. See Investment Company Institute v. Board of Governors of Federal Reserve System, 179 U.S.App.D.C. 311, 317-318, 551 F.2d 1270, 1276-1277 (1977); Verkuil, Judicial Review of Informal Rulemaking, 60 Va.L.Rev. 185, 204 (1974). Second, such an approach would cause bifurcation of review of orders issued in the same proceeding. While the final order in the licensing proceeding would be reviewed initially in the court of appeals, numerous ancillary or preliminary orders denying requests for intervention or a hearing by persons who purport to be affected by the issues in the proceeding would be reviewed initially in the district court. In the absence of specific evidence of contrary congressional intent, however, we have held that review of orders resolving issues preliminary or ancillary to the core issue in a proceeding should be reviewed in the same forum as the final order resolving the core issue. Foti v. INS, 375 U. S. 217, 375 U. S. 227, 375 U. S. 232 (1963); see L. Jaffe, Judicial Control of Administrative Action 422 (1965); Currie & Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum.L.Rev. 1, 60 (1975).Perhaps the only plausible justification for linking initial review in the court of appeals to the occurrence of a hearing before the agency would be that, absent a hearing, the reviewing court would lack an adequate agency-compiled factual basis to evaluate the agency action and a district court with factfinding powers could make up that deficiency. Such a justification cannot, however, be squared with fundamental principles of judicial review of agency action."[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."Camp v. Pitts, 411 U. S. 138, 411 U. S. 142 (1973). The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the Page 470 U. S. 744 agency decision based on the record the agency presents to the reviewing court. Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 (1971).If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed, and to reach its own conclusions based on such an inquiry. We made precisely this point last Term in a case involving review under the Hobbs Act. FCC v. ITT World Communications, Inc., 466 U. S. 463, 466 U. S. 468-469 (1984); see also Camp v. Pitts, supra. Moreover, a formal hearing before the agency is in no way necessary to the compilation of an agency record. As the actions of the Commission in compiling a 547-page record in this case demonstrate, agencies typically compile records in the course of informal agency action. The APA specifically contemplates judicial review on the basis of the agency record compiled in the course of informal agency action in which a hearing has not occurred. See 5 U.S.C. §§ 551(13), 704, 706.The factfinding capacity of the district court is thus typically unnecessary to judicial review of agency decisionmaking. Placing initial review in the district court does have the negative effect, however, of requiring duplication of the identical task in the district court and in the court of appeals; both courts are to decide, on the basis of the record the agency provides, whether the action passes muster under the appropriate APA standard of review. One crucial purpose of the Hobbs Act and other jurisdictional provisions that place initial review in the courts of appeals is to avoid the waste attendant upon this duplication of effort. Harrison v. PPG Industries, Inc., 446 U.S. at 446 U. S. 593; Investment Company Page 470 U. S. 745 Institute, supra, at 317, 551 F.2d at 1276. Absent a firm indication that Congress intended to locate initial APA review of agency action in the district courts, we will not presume that Congress intended to depart from the sound policy of placing initial APA review in the courts of appeals.These considerations apply with full force in the present cases. Locating initial review in the district court would certainly result in duplication of effort, and probably result in bifurcation of review, in that persons seeking to use § 2.206 petitions to broaden the scope of ongoing Commission proceedings would, if unsuccessful, obtain review in the district court while review of the final order in the proceeding would occur in the court of appeals. [Footnote 11] Page 470 U. S. 746IIIWhether initial subject matter jurisdiction lies initially in the courts of appeals must, of course, be governed by the intent of Congress, and not by any views we may have about sound policy. Harrison v. PPG Industries, Inc., supra, at 446 U. S. 593. In these cases, the indications of legislative intent we have been able to discern suggest that Congress intended to locate initial subject matter jurisdiction in the courts of appeals. This result is in harmony with Congress' choice of Hobbs Act review for Commission licensing proceedings in § 2239(b), and is consistent with basic principles respecting the allocation of judicial review of agency action. We therefore hold that 42 U.S.C. § 2239 vests in the courts of appeals initial subject matter jurisdiction over Commission orders denying § 2.206 citizen petitions. Accordingly, the judgment below is reversed, and the cases are remanded to the Court of Appeals for further proceedings consistent with this opinion.It is so ordered | U.S. Supreme CourtFlorida Power & Light Co. v. Lorion, 470 U.S. 729 (1985)Florida Power & Light Co. v. LorionNo. 83-703Argued October 29, 1984Decided March 20, 1985*470 U.S. 729SyllabusUnder 28 U.S.C. § 2342(4), a provision of the Hobbs Act, the courts of appeals have exclusive jurisdiction over petitions for review of "all final orders" of the Nuclear Regulatory Commission "made reviewable by" 42 U.S.C. § 2239. Section 2239(b), in turn, provides that the Hobbs Act governs review of "[a]ny final order entered in any proceeding of the kind specified in subsection (a) of this section." Subsection (a)(1) provides that,"[i]n any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding."Respondent Lorion (hereafter respondent) wrote a detailed letter to the Commission expressing fears about potential safety threats at Florida Power & Light Co.'s nuclear reactor near her home, and urging the Commission to suspend the reactor's operating license. The Commission treated the letter as a citizen petition, under its rules, requesting the institution of administrative proceedings to suspend the license. After the Commission ultimately denied the request, respondent petitioned the Court of Appeals for review. The court decided sua sponte that it lacked initial subject matter jurisdiction to review the Commission's denial of respondent's citizen petition, concluding that such a denial was not an order in a "proceeding" within the meaning of § 2239(a)(1).Held: Section 2239 vests in the courts of appeals initial subject matter jurisdiction over Commission orders denying citizen petitions made pursuant to Commission rules. Pp. 470 U. S. 734-746.(a) The language of § 2239 is ambiguous, because subsection (b) refers to "proceeding[s] of the kind specified in subsection (a)," but the pertinent sentence in subsection (a)(1) sets forth both the scope of Commission licensing proceedings and a hearing requirement for such proceedings. Thus, § 2239 may be read to authorize initial court of appeals Page 470 U. S. 730 review either by reference to whether a hearing was held pursuant to the hearing requirement (as the Court of Appeals did here), or by reference to the subject matter of the agency action, that is, whether the order was issued in a licensing proceeding. Pp. 470 U. S. 735-737.(b) Relevant evidence of congressional intent in the legislative history supports the interpretation that Congress intended to provide for initial court of appeals review of all final orders in licensing proceedings whether or not a hearing before the Commission occurred or could have occurred. Pp. 470 U. S. 737-740.(c) Whether subject matter jurisdiction over denials of citizens petitions properly lies in the district courts or the courts of appeals must also be considered in light of the basic congressional choice of Hobbs Act review in § 2239(b). The Hobbs Act specifically contemplates initial courts of appeals review of agency orders resulting from proceedings in which no hearing took place. Pp. 470 U. S. 740-741.(d) Adopting a rule that would vest the courts of appeals with initial subject matter jurisdiction of challenges to Commission denials of citizen petitions only when an administrative hearing occurred or could have occurred would result in irrational consequences that could not be squared with general principles respecting judicial review of agency action. Pp. 470 U. S. 741-745.229 U.S.App.D.C. 440, 712 F.2d 1472, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 470 U. S. 746. Page 470 U. S. 731 |
386 | 1959_62 | MR. JUSTICE BLACK delivered the opinion of the Court.This is a civil antitrust action brought by the United States in a Federal District Court against an agricultural cooperative, the Maryland and Virginia Milk Producers Association, Inc. The Association supplies about 86% of the milk purchased by all milk dealers in the Washington, D.C., metropolitan area, and has as members about 2,000 Maryland and Virginia dairy farmers. The complaint charged that the Association had: (1) attempted to monopolize and had monopolized interstate trade and commerce in fluid milk in Maryland, Virginia and the District of Columbia in violation of § 2 of the Sherman Act; [Footnote 1] (2) through contracts and agreements, combined and conspired with Embassy Dairy and others to eliminate and foreclose competition in the same milk market area in violation of § 3 of that Act; [Footnote 2] and (3) bought all the assets of Embassy Dairy, the largest milk dealer in the area which competed with the Association's dealers, the effect of which acquisition might be substantially to lessen competition or to tend to create Page 362 U. S. 461 a monopoly in violation of § 7 of the Clayton Act. [Footnote 3] The chief defense set up by the Association was that, because of its being a cooperative composed exclusively of dairy farmers, § 6 of the Clayton Act [Footnote 4] and §§ 1 and 2 of the Capper-Volstead Act [Footnote 5] completely exempted and immunized it from the antitrust laws with respect to the charges made in the Government's complaint. The District Court concluded after arguments that"an agricultural cooperative is entirely exempt from the provisions of the antitrust laws, both as to its very existence as well as to all of its activities, provided it does not enter into conspiracies or combinations with persons who are not producers of agricultural commodities."167 F. Supp. 45, 52. Page 362 U. S. 462 Accordingly, the court dismissed the Sherman Act § 2 monopolization charge, where the Association was not alleged to have acted in combination with others, but upheld the right of the Government to go to trial on the Sherman Act § 3 and Clayton Act § 7 charges because they involved alleged activities with the owners of Embassy and other persons who were not agricultural producers. After trial, the court found for the United States on the latter two charges and entered a decree ordering the Association to divest itself within a reasonable time of all assets acquired from Embassy and to cancel all contracts ancillary to the acquisition. 167 F. Supp. 799; 168 F. Supp. 880. The court refused to grant additional relief the United States asked for. It is from this refusal and the dismissal of its Sherman Act § 2 monopolization charge that the Government appealed directly to this Court under the Expediting Act. [Footnote 6] The Association similarly appealed to review the judgments against it on the Sherman Act § 3 charge and the Clayton Act § 7 charge. We noted probable jurisdiction, 360 U.S. 927, and treat both appeals in this opinion.The Association's chief argument for antitrust exemption is based on § 2 of the Capper-Volstead Act, which authorizes the Secretary of Agriculture to issue a cease and desist order upon a finding that a cooperative has monopolized or restrained trade to such an extent that the price of an agricultural commodity has been "unduly enhanced." [Footnote 7] The contention is that this provision was Page 362 U. S. 463 intended to give the Secretary of Agriculture primary jurisdiction, and thereby exclude any prosecutions at all under the Sherman Act. This Court unequivocally rejected the same contention in United States v. Borden Co., 308 U. S. 188, 308 U. S. 206, after full consideration of the same legislative history that we are now asked to review again. We adhere to the reasoning and holding of the Borden opinion on this point.The Association also argues that, without regard to § 2 of the Capper-Volstead Act, § 1 of that Act and § 6 of the Clayton Act demonstrate a purpose wholly to exempt agricultural associations from the antitrust laws. In the Borden case, this Court held that neither § 6 of the Clayton Act nor the Capper-Volstead Act granted immunity from prosecution for the combination of a cooperative and others to restrain trade there charged as a violation of § 1 of the Sherman Act. Although the Court was not confronted with charges under § 2 of the Sherman Act in that case, we do not believe that Congress intended to immunize cooperatives engaged in competition-stifling practices from prosecution under the anti-monopolization provisions of § 2 of the Sherman Act, while making them responsible for such practices as violations of the anti-trade restraint provisions of §§ 1 and 3 of that Act. These sections closely overlap, and the same kind of predatory practices may show violations of all. [Footnote 8] The reasons underlying the Court's holding in the Borden case that the cooperative there was not completely exempt under § 1 apply equally well to §§ 2 and 3. The Clayton Page 362 U. S. 464 and Capper-Volstead Acts, construed in the light of their background, do not lend themselves to such an incongruous immunity distinction between the sections as that urged here.In the early 1900's, when agricultural cooperatives were growing in effectiveness, there was widespread concern because the mere organization of farmers for mutual help was often considered to be a violation of the antitrust laws. Some state courts had sustained antitrust charges against agricultural cooperatives, [Footnote 9] and, as a result, eventually all the States passed Acts authorizing their existence. [Footnote 10] It was to bar such prosecutions by the Federal Government as to interstate transactions that Congress in 1914 inserted § 6 in the Clayton Act, exempting agricultural organizations, along with labor unions, from the antitrust laws. This Court has held that the provisions of that section, set out below, [Footnote 11] relating to labor Page 362 U. S. 465 unions do not manifest "a congressional purpose wholly to exempt" them from the antitrust laws, [Footnote 12] and neither the language nor the legislative history of the section indicates a congressional purpose to grant any broader immunity to agricultural cooperatives. The language shows no more than a purpose to allow farmers to act together in cooperative associations without the associations as such being "held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws," as they otherwise might have been. This interpretation is supported by the House and Senate Committee Reports on the bill. [Footnote 13] Thus, the full effect of § 6 is that a group of farmers acting together as a single entity in an association cannot be restrained "from lawfully carrying out the legitimate objects thereof" (emphasis supplied), but the section cannot support the contention that it gives such an entity full freedom to Page 362 U. S. 466 engage in predatory trade practices at will. See United States v. King, 229 F. 275; 250 F. 908, 910. Cf. United States v. Borden Co., 308 U. S. 188, 308 U. S. 203-205.The Capper-Volstead Act of 1922 extended § 6 of the Clayton Act exemption to capital stock agricultural cooperatives which had not previously been covered by that section. [Footnote 14] Section 1 of the Capper-Volstead Act also provided that among "the legitimate objects" of farmer organizations were "collectively processing, preparing for market, handling, and marketing" products through common marketing agencies, and the making of "necessary contracts and agreements to effect such purposes." We believe it is reasonably clear from the very language of the Capper-Volstead Act, as it was in § 6 of the Clayton Act, that the general philosophy of both was simply that individual farmers should be given, through agricultural cooperatives acting as entities, the same unified competitive advantage -- and responsibility -- available to businessmen acting through corporations as entities. As the House Report on the Capper-Volstead Act said:"Instead of granting a class privilege, it aims to equalize existing privileges by changing the law applicable to the ordinary business corporations so the farmers can take advantage of it. [Footnote 15]"This indicates a purpose to make it possible for farmer-producers to organize together, set association policy, fix prices at which their cooperative will sell their produce, and otherwise carry on like a business corporation without thereby violating the antitrust laws. It does not suggest Page 362 U. S. 467 a congressional desire to vest cooperatives with unrestricted power to restrain trade or to achieve monopoly by preying on independent producers, processors or dealers intent on carrying on their own businesses in their own legitimate way. In the Senate hearings on the Capper-Volstead Act, the Secretary of Agriculture, who was given a large measure of authority under this Act, and the Solicitor of his Department, testified that the Act would not authorize cooperatives to engage in predatory practices in violation of the Sherman Act. [Footnote 16] And the House Committee Report assured the Congress that:"In the event that associations authorized by this bill shall do anything forbidden by the Sherman Antitrust Act, they will be subject to the penalties imposed by that law. [Footnote 17]"Although contrary inferences could be drawn from some parts of the legislative history, we are satisfied that the part of the House Committee Report just quoted correctly interpreted the Capper-Volstead Act, and that the Act did not leave cooperatives free to engage in practices against other persons in order to monopolize trade, or restrain and suppress competition with the cooperative. Page 362 U. S. 468 Therefore, we turn now to a consideration of the District Court's judgments in this case.Sherman Act § 2 Dismissal. -- The complaint charging monopolization alleged that the Association had"[t]hreatened and undertaken diverse actions to induce or compel dealers to purchase milk from the defendant [Association], and induced and assisted others to acquire dealer outlets"which were not purchasing milk from the Association. It also alleged that the Association"[e]xcluded, eliminated, and attempted to eliminate others, including producers and producers' agricultural cooperative associations not affiliated with defendant, from supplying milk to dealers."Supporting this charge, the statement of particulars listed a number of instances in which the Association attempted to interfere with truck shipments of nonmembers' milk, and an attempt during 1939-1942 to induce a Washington dairy to switch its non-Association producers to the Baltimore market. The statement of particulars also included charges that the Association engaged in a boycott of a feed and farm supply store to compel its owner, who also owned an Alexandria dairy, to purchase milk from the Association, and that it compelled a dairy to buy its milk by using the leverage of that dairy's indebtedness to the Association. We are satisfied that the allegations of the complaint and the statement of particulars, only a part of which we have set out, charge anticompetitive activities which are so far outside the "legitimate objects" of a cooperative that, if proved, they would constitute clear violations of § 2 of the Sherman Act by this Association, a fact, indeed, which the Association does not really dispute if it is subject to liability under this section. It was error for the District Court to dismiss the § 2 charge.Clayton Act § 7 Judgment. -- In 1954, the Association purchased the assets of Embassy Dairy in Washington. The complaint charged that this acquisition constituted Page 362 U. S. 469 a violation of § 7 of the Clayton Act, which prohibits a corporation engaged in commerce from acquiring all or any part of the assets of another corporation so engaged where the effect may be to tend to create a monopoly or substantially lessen competition. A trial was had before the District Court on this charge, and the court found that the motive for and result of the Embassy acquisition was to: eliminate the largest purchaser of non-Association milk in the area; force former Embassy non-Association producers either to join the Association or to ship to Baltimore, thus both bringing more milk to the Association and diverting competing milk to another market; eliminate the Association's prime competitive dealer from government contract milk bidding; and increase the Association's control of the Washington market. On these findings, amply supported by evidence, the District Court could properly conclude, as it did, that the Embassy acquisition tended to create a monopoly or substantially lessen competition, and was therefore a violation of § 7. [Footnote 18]This leaves the contention that the acquisition of Embassy was protected by the last paragraph of § 7 of the Clayton Act which, in pertinent part, provides that:"Nothing contained in this section shall apply to transactions duly consummated pursuant to authority given by . . . the Secretary of Agriculture under any statutory provision vesting such power in such . . . Secretary. . . . [Footnote 19]"The Association contends that its purchase of Embassy Dairy was "consummated pursuant to authority given by . . . the Secretary of Agriculture." The trouble with this contention is that there is no "statutory provision" that vests power in the Secretary of Agriculture to approve a transaction, and thereby exempt a cooperative Page 362 U. S. 470 from the antitrust laws under the circumstances of this case. While there is a "statutory provision" vesting power in the Secretary of Agriculture to enter into agricultural marketing agreements which "shall be deemed to be lawful" and "not . . . be in violation of any of the antitrust laws of the United States," no such marketing agreement is involved here. [Footnote 20]Sherman Act § 3 Judgment. -- The complaint charged that the Association, Embassy and others had violated § 3 of the Sherman Act by engaging in a combination and conspiracy to eliminate and foreclose competition with the Association and with dealers purchasing milk from the Association. The District Court, with the consent of the parties, considered and decided this § 3 charge on the evidence offered on the § 7 Clayton Act charge. A crucial element in this charge of concerted action was the Association's purchase of Embassy's assets under a contract containing an agreement by the former owners of Embassy not to compete with the Association in the milk business in the Washington area for 10 years, and to attempt to have all former Embassy producers either join the Association or ship their milk to the Baltimore market. Also, particularly pertinent to the charge of a § 3 combination, was evidence showing a long and spirited business rivalry between the Association and its producers, on the one hand, and Embassy and its independent producers, on the other. The Association had been "unhappy" about Embassy's price cutting and its generally "disruptive" competitive practices that had made Embassy a "thorn in the side of the Association for many years." There was also evidence emphasized by the court in its Page 362 U. S. 471 Clayton Act § 7 opinion that "the price paid by the Association for the transfer was far in excess of the actual and intrinsic value of the property purchased." 167 F. Supp. 799, 806. After readopting its Clayton Act § 7 findings regarding the anticompetitive motives and results of the Embassy acquisition, see p. 362 U. S. 469, supra, the District Court made the three following additional findings on the Sherman Act § 3 charge: (1) "that the result of the transaction complained of was a foreclosure of competition," (2) "that the transaction complained of was entered into with the intent and purpose of restraining trade," [Footnote 21] and (3)"that an unreasonable restraint of trade, violative of the Sherman Act, has resulted from the acquisition of Embassy Dairy by the defendant [Association]."On the basis of its findings and opinion, the court then concluded that "the transaction involving the acquisition of Embassy Dairy by the defendant constitutes a violation of Section 3 of the Sherman Act." 168 F. Supp. 880, 881, 882.The facts found by the court show a classic combination or conspiracy to restrain trade, unless, as the Association contends, "the transaction involving the acquisition of Embassy" upon which the judgment against it was based is protected against Sherman Act prosecutions by the Capper-Volstead Act's provisions that cooperatives can lawfully make "the necessary contracts and agreements" to process, handle and market milk for their producer members. The Embassy assets the Association acquired are useful in processing and marketing milk, and we may assume, as it is contended, that their purchase simply for business use, without more, often would be permitted and would be lawful under the Capper-Volstead Page 362 U. S. 472 Act. But even lawful contracts and business activities may help to make up a pattern of conduct unlawful under the Sherman Act. [Footnote 22] The contract of purchase here, viewed in the context of all the evidence and findings, was not one made merely to advance the Association's own permissible processing and marketing business; it was entered into by both parties, according to the court's findings as we understand them, because of its usefulness as a weapon to restrain and suppress competitors and competition in the Washington metropolitan area. We hold that the privilege the Capper-Volstead Act grants producers to conduct their affairs collectively does not include a privilege to combine with competitors [Footnote 23] so as to use a monopoly position as a lever further to suppress competition by and among independent producers and processors.Adequacy of Relief. -- The Government's appeal in this case is directed in part at the relief granted it by the District Court. The judgment requires the Association to"dispose of as a unit and as a going dairy business all [Embassy] assets . . . tangible or intangible, which it acquired on July 26, 1954, and replacements therefor,"and to do so in "good faith" to preserve the business in "as good condition as possible." The District Court refused to go further and require the Association to dispose of "all assets used" in the Embassy operation, to prohibit the Association from operating as a dealer in the Washington market for a period after divestiture, to prevent the future acquisition of distributors without prior approval of the Government, and to grant the Government general "visitation rights" as to the Association's records and employees. The District Court was of the view that the Government would either be adequately Page 362 U. S. 473 protected as to these matters by the "good faith" requirement or by subsequent orders of the District Court when the occasion necessitated. The formulation of decrees is largely left to the discretion of the trial court, and we see no reason to reject the judgment of the District Court that the relief it granted will be effective in undoing the violation it found in view of the fact that it also retains the cause for future orders, including the right of visitation if deemed appropriate. See Associated Press v. United States, 326 U. S. 1, 326 U. S. 22-23.Accordingly, the judgment of the District Court finding violations of § 7 of the Clayton Act and § 3 of the Sherman Act is affirmed, and its dismissal of the charges under § 2 of the Sherman Act is reversed and remanded for a trial.Affirmed | U.S. Supreme CourtMilk Producers Assn. v. United States, 362 U.S. 458 (1960)Maryland and Virginia Milk Producers Assn., Inc. v. United StatesNo. 62Argued January 19-20, 1960Decided May 2, 1960*362 U.S. 458SyllabusThe United States brought a civil antitrust action against an agricultural cooperative marketing association composed of about 2,000 Maryland and Virginia dairy farmers supplying about 86% of the milk purchased by all milk dealers in the Washington, D.C., metropolitan area. The complaint charged that the association had (1) monopolized and attempted to monopolize interstate trade and commerce in fluid milk in Maryland, Virginia and the District of Columbia, in violation of § 2 of the Sherman Act; (2) through contracts and agreements combined and conspired with Embassy Dairy and others to eliminate and foreclose competition in the same milk market area, in violation of § 3 of the Sherman Act; and (3) bought all assets of Embassy Dairy (the largest milk dealer in the area which competed with the association's dealers), the effect of which might be to substantially lessen competition or tend to create a monopoly in violation of § 7 of the Clayton Act. The District Court dismissed the charge under § 2 of the Sherman Act, but it found for the Government on the charges under § 3 of the Sherman Act and § 7 of the Clayton Act and granted part, but not all, of the relief sought by the Government with respect to those charges.Held:1. Section 2 of the Capper-Volstead Act, which authorizes the Secretary of Agriculture to issue a cease and desist order upon finding that a cooperative has monopolized or restrained trade to such an extent that the price of an agricultural commodity has been "unduly enhanced," does not exclude all prosecutions under the Sherman Act. United States v. Borden Co., 308 U. S. 188. Pp. 362 U. S. 462-463.2. Neither § 6 of the Clayton Act nor § 1 of the Capper-Volstead Act leaves agricultural cooperatives free to engage in practices against others which are designed to monopolize trade or to restrain and suppress competition. Pp. 362 U. S. 463-468. Page 362 U. S. 4593. The allegations of the complaint and the statement of particulars in this case charge anticompetitive activities which are so far outside the legitimate objects of a cooperative that, if proved, they would constitute clear violations of § 2 of the Sherman Act; and the District Court erred in dismissing the charge of violating § 2. P. 362 U. S. 468.4. On the record in this case, the District Court properly found that the acquisition of Embassy Dairy by the association tended to create a monopoly or to substantially lessen competition, in violation of § 7 of the Clayton Act. Pp. 362 U. S. 468-469.5. The acquisition of Embassy Dairy by the association was not exempted from the provisions of § 7 of the Clayton Act by the last paragraph of that section, since there is no "statutory provision" that vests power in the Secretary of Agriculture to approve a transaction, and thereby exempt a cooperative from the antitrust laws under the circumstances of this case, which involves no agricultural marketing agreement with the Secretary. Pp. 362 U. S. 469-470.6. The privilege the Capper-Volstead Act grants producers to conduct their affairs collectively does not include a privilege to combine with competitors so as to use a monopoly position as a lever further to suppress competition by and among independent producers and processors, and the record sustains the District Court's finding that the association had violated § 3 of the Sherman Act. Pp. 362 U. S. 470-472.7. Having entered a decree ordering the association to divest itself of all assets acquired from Embassy Dairy and to cancel all contracts ancillary to their acquisition, and having retained jurisdiction to grant such further relief as might be appropriate, the District Court did not err in denying part of the relief sought by the Government. Pp. 362 U. S. 472-473.167 F. Supp. 45 reversed.167 F. Supp. 799, 168 F. Supp. 880, affirmed. Page 362 U. S. 460 |
387 | 1973_73-1766 | MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.This litigation presents for review the denial of a motion, filed in the District Court on behalf of the President of the United States, in the case of United States v. Mitchell (D.C.Crim. No. 7110), to quash a third-party subpoena duces tecum issued by the United States District Court for the District of Columbia, pursuant to Fed.Rule Crim.Proc. 17(c). The subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. The court rejected the President's claims of absolute executive privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule 17(c). The President appealed to the Court of Appeals. We granted both the United States' petition for certiorari before judgment (No. 7 1766), [Footnote 1] and also the President's cross-petition for certiorari Page 418 U. S. 687 before judgment (No. 73-1834), [Footnote 2] because of the public importance of the issues presented and the need for their prompt resolution. 417 U.S. 927 and 960 (1974).On March 1, 1974, a grand jury of the United States District Court for the District of Columbia returned an indictment charging seven named individuals [Footnote 3] with various offenses, including conspiracy to defraud the United States and to obstruct justice. Although he was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted coconspirator. [Footnote 4] On April 18, 1974, upon motion of the Special Page 418 U. S. 688 Prosecutor, see n 8, infra, a subpoena duces tecum was issued pursuant to Rule 17(c) to the President by the United States District Court and made returnable on May 2, 1974. This subpoena required the production, in advance of the September 9 trial date, of certain tapes, memoranda, papers, transcripts, or other writings relating to certain precisely identified meetings between the President and others. [Footnote 5] The Special Prosecutor was able to fix the time, place, and persons present at these discussions because the White House daily logs and appointment records had been delivered to him. On April 30, the President publicly released edited transcripts of 43 conversations; portions of 20 conversations subject to subpoena in the present case were included. On May 1, 1974, the President's counsel filed a "special appearance" and a motion to quash the subpoena under Rule 17(c). This motion was accompanied by a formal claim of privilege. At a subsequent hearing, [Footnote 6] further motions to expunge the grand jury's action naming the President as an unindicted coconspirator and for protective orders against the disclosure of that information were filed or raised orally by counsel for the President.On May 20, 1974, the District Court denied the motion to quash and the motions to expunge and for protective orders. 377 F. Supp. 1326. It further ordered "the President or any subordinate officer, official, or employee with custody or control of the documents or Page 418 U. S. 689 objects subpoenaed," id. at 1331, to deliver to the District Court, on or before May 31, 1974, the originals of all subpoenaed items, as well as an index and analysis of those items, together with tape copies of those portions of the subpoenaed recordings for which transcripts had been released to the public by the President on April 30. The District Court rejected jurisdictional challenges based on a contention that the dispute was nonjusticiable because it was between the Special Prosecutor and the Chief Executive and hence "intra-executive" in character; it also rejected the contention that the Judiciary was without authority to review an assertion of executive privilege by the President. The court's rejection of the first challenge was based on the authority and powers vested in the Special Prosecutor by the regulation promulgated by the Attorney General; the court concluded that a justiciable controversy was presented. The second challenge was held to be foreclosed by the decision in Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973).The District Court held that the judiciary, not the President, was the final arbiter of a claim of executive privilege. The court concluded that, under the circumstances of this case, the presumptive privilege was overcome by the Special Prosecutor's prima facie "demonstration of need sufficiently compelling to warrant judicial examination in chambers. . . ." 377 F. Supp. at 1330. The court held, finally, that the Special Prosecutor had satisfied the requirements of Rule 17(c). The District Court stayed its order pending appellate review on condition that review was sought before 4 p.m., May 24. The court further provided that matters filed under seal remain under seal when transmitted as part of the record.On May 24, 1974, the President filed a timely notice of appeal from the District Court order, and the certified record from the District Court was docketed in the United Page 418 U. S. 690 States Court of Appeals for the District of Columbia Circuit. On the same day, the President also filed a petition for writ of mandamus in the Court of Appeals seeking review of the District Court order.Later on May 24, the Special Prosecutor also filed, in this Court, a petition for a writ of certiorari before judgment. On May 31, the petition was granted with an expedited briefing schedule. 417 U.S. 927. On June 6, the President filed, under seal, a cross-petition for writ of certiorari before judgment. This cross-petition was granted June 1, 1974, 417 U.S. 960, and the case was set for argument on July 8, 1974.IJURISDICTIONThe threshold question presented is whether the May 20, 1974, order of the District Court was an appealable order and whether this case was properly "in" the Court of Appeals when the petition for certiorari was filed in this Cort. 28 U.S.C. § 1254. The Court of Appeals' jurisdiction under 28 U.S.C. § 1291 encompasses only "final decisions of the district courts." Since the appeal as timely filed and all other procedural requirements were met, the petition is properly before this Court for consideration if the District Court order was final. 28 U.S.C. §§ 1254(1), 2101(e).The finality requirement of 28 U.S.C. § 1291 embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals. See, e.g., Cobbledick v. United States, 309 U. S. 323, 309 U. S. 324-326 (1940). This requirement ordinarily promotes judicial efficiency and hastens the ultimate termination of litigation. In applying this principle to an order denying a motion to quash and requiring the production of evidence pursuant Page 418 U. S. 691 to a subpoena duces tecum, it has been repeatedly held that the order is not final, and hence not appealable. United States v. Ryan, 402 U. S. 530, 402 U. S. 532 (1971); Cobbledick v. United States, supra; Alexander v. United States, 201 U. S. 117 (1906). This Court has"consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal."United States v. Ryan, supra, at 402 U. S. 533.The requirement of submitting to contempt, however, is not without exception, and in some instances the purposes underlying the finality rule require a different result. For example, in Perlman v. United States, 247 U. S. 7 (1918), a subpoena had been directed to a third party requesting certain exhibits; the appellant, who owned the exhibits, sought to raise a claim of privilege. The Court held an order compelling production was appealable because it was unlikely that the third party would risk a contempt citation in order to allow immediate review of the appellant's claim of privilege. Id. at 247 U. S. 12-13. That case fell within the "limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims." United States v. Ryan, supra, at 402 U. S. 533.Here too, the traditional contempt avenue to immediate appeal is peculiarly inappropriate due to the unique setting in which the question arises. To require a President of the United States to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review of the ruling would be Page 418 U. S. 692 unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government. Similarly, a federal judge should not be placed in the posture of issuing a citation to a President simply in order to invoke review. The issue whether a President can be cited for contempt could itself engender protracted litigation, and would further delay both review on the merits of his claim of privilege and the ultimate termination of the underlying criminal action for which his evidence is sought. These considerations lead us to conclude that the order of the District Court was an appealable order. The appeal from that order was therefore properly "in" the Court of Appeals, and the case is now properly before this Court on the writ of certiorari before judgment. 28 U.S.C. § 1254; 28 U.S.C. § 2101(e). Gay v. Ruff, 292 U. S. 25, 292 U. S. 30 (1934). [Footnote 7]IIJUSTICIABILITYIn the District Court, the President's counsel argued that the court lacked jurisdiction to issue the subpoena because the matter was an intra-branch dispute between a subordinate and superior officer of the Executive Branch, and hence not subject to judicial resolution. That argument has been renewed in this Court with emphasis on the contention that the dispute does not present a "case" or "controversy" which can be adjudicated in the federal courts. The President's counsel argues that the federal courts should not intrude into areas committed to the other branches of Government. Page 418 U. S. 693 He views the present dispute as essentially a "jurisdictional" dispute within the Executive Branch which he analogizes to a dispute between two congressional committees. Since the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case, Confiscation Cases, 7 Wall. 454 (1869); United States v. Cox, 342 F.2d 167, 171 (CA5), cert. denied sub nom. Cox v. Hauber, 381 U.S. 935 (1965), it is contended that a President's decision is final in determining what evidence is to be used in a given criminal case. Although his counsel concedes that the President ha delegated certain specific powers to the Special Prosecutor, he has not"waived nor delegated to the Special Prosecutor the President's duty to claim privilege as to all materials . . . which fall within the President's inherent authority to refuse to disclose to any executive officer."Brief for the President 42. The Special Prosecutor's demand for the items therefore presents, in the view of the President's counsel, a political question under Baker v. Carr, 369 U. S. 186 (1962), since it involves a "textually demonstrable" grant of power under Art. II.The mere assertion of a claim of an "intra-branch dispute," without more, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry. In United States v. ICC, 337 U. S. 426 (1949), the Court observed, "courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented." Id. at 337 U. S. 430. See also Powell v. McCormack, 395 U. S. 486 (1969); ICC v. Jersey City, 322 U. S. 503 (1944); United States ex rel. Chapman v. FPC, 345 U. S. 153 (1953); Secretary of Agriculture v. United States, 347 U. S. 645 (1954); FMB v. Isbrandtsen Co., 356 U. S. 481, 356 U. S. 483 n. 2 (1958); United States v. Marine Bancorporation, ante, p. 418 U. S. 602; and United States v. Connecticut National Bank, ante, p. 418 U. S. 656. Page 418 U. S. 694Our starting point is the nature of the proceeding for which the evidence is sought -- here, a pending criminal prosecution. It is a judicial proceeding in a federal court alleging violation of federal laws, and is brought in the name of the United States as sovereign. Berger v. United States, 295 U. S. 78, 295 U. S. 88 (1935). Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure. [Footnote 8] The regulation gives the Page 418 U. S. 695 Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties. [Footnote 9] 38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805.So long as this regulation is extant, it has the force of law. In United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954), regulations of the Attorney General delegated certain of his discretionary powers to the Board Page 418 U. S. 696 of Immigration Appeals and required that Board to exercise its own discretion on appeals in deportation cases. The Court held that, so long as the Attorney General's regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations. Service v. Dulles, 354 U. S. 363, 354 U. S. 388 (1957), and Vitarelli v. Seaton, 359 U. S. 535 (1959), reaffirmed the basic holding of Accardi.Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority. But he has not done so. [Footnote 10] So long as this regulation remains in force, the Executive Branch is bound by it, and indeed the United States, as the sovereign composed of the three branches, is bound to respect and to enforce it. Moreover, the delegation of authority to the Special Prosecutor in this case is not an ordinary delegation by the Attorney General to a subordinate officer: with the authorization of the President, the Acting Attorney General provided in the regulation that the Special Prosecutor was not to be removed without the "consensus" of eight designated leaders of Congress. N 8, supra.The demands of and the resistance to the subpoena present an obvious controversy in the ordinary sense, but that alone is not sufficient to meet constitutional standards. In the constitutional sense, controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve. Here Page 418 U. S. 697 at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one official of the Executive Branch within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communications of the President. Whatever the correct answer on the merits, these issues are "of a type which are traditionally justiciable." United States v. ICC, 337 U.S. at 337 U. S. 430. The independent Special Prosecutor, with his asserted need for the subpoenaed material in the underlying criminal prosecution, is opposed by the President, with his steadfast assertion of privilege against disclosure of the material. This setting assures there is"that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."Baker v. Carr, 369 U.S. at 369 U. S. 204. Moreover, since the matter is one arising in the regular course of a federal criminal prosecution, it is within the traditional scope of Art. III power. Id. at 369 U. S. 198.In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are officer of the Executive Branch cannot be viewed as a barrier to justiciability. It would be inconsistent with the applicable law and regulation, and the unique facts of this case, to conclude other than that the Special Prosecutor has standing to bring this action, and that a justiciable controversy is presented for decision.IIIRULE 17(c)The subpoena duces tecum is challenged on the ground that the Special Prosecutor failed to satisfy the requirements of Fed.Rule Crim.Proc. 17(c), which governs Page 418 U. S. 698 the issuance of subpoenas duces tecum in federal criminal proceedings. If we sustained this challenge, there would be no occasion to reach the claim of privilege asserted with respect to the subpoenaed material. Thus, we turn to the question whether the requirements of Rule 17(c) have been satisfied. See Arkansas Louisiana Gas Co. v. Dept. of Public Utilities, 304 U. S. 61, 304 U. S. 64 (1938); Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346-347 (1936) (Brandeis, J., concurring).Rule 17(c) provides:"A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys."A subpoena for documents may be quashed if their production would be "unreasonable or oppressive," but not otherwise. The leading case in this Court interpreting this standard is Bowman Dairy Co. v. United States, 341 U. S. 214 (1951). This case recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases, id. at 341 U. S. 220; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of Page 418 U. S. 699 subpoenaed materials, [Footnote 11] ibid. As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld's formulation in United States v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary [Footnote 12] and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial, and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that Page 418 U. S. 700 the application is made in good faith and is not intended as a general "fishing expedition."Against this background, the Special Prosecutor, in order to carry his burden, must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity. Our own review of the record necessarily affords a less comprehensive view of the total situation than was available to the trial judge, and we are unwilling to conclude that the District Court erred in the evaluation of the Special Prosecutor's showing under Rule 17(c). Our conclusion is based on the record before us, much of which is under seal. Of course, the contents of the subpoenaed tapes could not at that stage be described fully by the Special Prosecutor, but there was a sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment. United States v. Gross, 24 F.R.D. 138 (SDNY 1959). With respect to many of the tapes, the Special Prosecutor offered the sworn testimony or statements of one or more of the participants in the conversations as to what was said at the time. As for the remainder of the tapes, the identity of the participants and the time and place of the conversations, taken in their total context, permit a rational inference that at least part of the conversations relate to the offenses charged in the indictment.We also conclude there was a sufficient preliminary showing that each of the subpoenaed tapes contains evidence admissible with respect to the offenses charged in the indictment. The most cogent objection to the admissibility of the taped conversations here at issue is that they are a collection of out-of-court statements by declarants who will not be subject to cross-examination, and that the statements are therefore inadmissible hearsay. Here, however, most of the tapes apparently contain conversations Page 418 U. S. 701 to which one or more of the defendant named in the indictment were party. The hearsay rule does not automatically bar all out-of-court statements by a defendant in a criminal case. [Footnote 13] Declarations by one defendant may also be admissible against other defendant upon a sufficient showing, by independent evidence, [Footnote 14] of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy. The same is true of declarations of coconspirators who are not defendants in the case on trial. Dutton v. Evans, 400 U. S. 74, 400 U. S. 81 (1970). Recorded conversations may also be admissible for the limited purpose of impeaching the credibility of any defendant who testifies or any other coconspirator who testifies. Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial. See, e.g., United States v. Carter, 15 F.R.D. 367, Page 418 U. S. 702 371 (DC 1954). Here, however, there are other valid potential evidentiary uses for the same material, and the analysis and possible transcription of the tapes may take a significant period of time. Accordingly, we cannot conclude that the District Court erred in authorizing the issuance of the subpoena duces tecum.Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court, since the necessity for the subpoena most often turns upon a determination of factual issues. Without a determination of arbitrariness or that the trial court finding was without record support, an appellate court will not ordinarily disturb a finding that the applicant for a subpoena complied with Rule 17(c). See, e.g., Sue v. Chicago Transit Authority, 279 F.2d 416, 419 (CA7 1960); Shotkin v. Nelson, 146 F.2d 402 (CA10 1944).In a case such as this, however, where a subpoena is directed to a President of the United States, appellate review, in deference to a coordinate branch of Government, should be particularly meticulous to ensure that the standards of Rule 17(c) have been correctly applied. United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807). From our examination of the materials submitted by the Special Prosecutor to the District Court in support of his motion for the subpoena, we are persuaded that the District Court's denial of the President's motion to quash the subpoena was consistent with Rule 17(c). We also conclude that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. The subpoenaed materials are not available from any other source, and their examination and processing should not await trial in the circumstances shown. Bowman Dairy Co. v. United States, 341 U. S. 214 (1951); United States v. Iozia, 13 F.R.D. 335 (SDNY 1952). Page 418 U. S. 703IVTHE CLAIM OF PRIVILEGE AHaving determined that the requirements of Rule 17(c) were satisfied, we turn to the claim that the subpoena should be quashed because it demands "confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce." App. 48a. The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that, if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum.In the performance of assigned constitutional duties, each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch 137 (1803), that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Id. at 5 U. S. 177. No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. Powell v. McCormack, 395 U. S. 486 (1969); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). In a Page 418 U. S. 704 series of cases, the Court interpreted the explicit immunity conferred by express provisions of the Constitution on Members of the House and Senate by the Speech or Debate Clause, U.S.Const. Art. I, § 6. Doe v. McMillan, 412 U. S. 306 (1973); Gravel v. United States, 408 U. S. 606 (1972); United States v. Brewster, 408 U. S. 501 (1972); United States v. Johnson 383 U. S. 169 (1966). Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers.Our system of government"requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch."Powell v. McCormack, supra, at 395 U. S. 549. And in Baker v. Carr, 369 U.S. at 369 U. S. 211, the Court stated:"Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution."Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed. Page 418 U. S. 705 1938). We therefore reaffirm that it is the province and duty of this Court "to say what the law is" with respect to the claim of privilege presented in this case. Marbury v. Madison, supra at 5 U. S. 177.BIn support of his claim of absolute privilege, the President's counsel urges two grounds, one of which is common to all governments and one of which is peculiar to our system of separation of powers. The first ground is the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process. [Footnote 15] Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; [Footnote 16] the protection of the confidentiality of Page 418 U. S. 706 Presidential communications has similar constitutional underpinnings.The second ground asserted by the President's counsel in support of the claim of absolute privilege rests on the doctrine of separation of powers. Here it is argued that the independence of the Executive Branch within its own sphere, Humphrey's Executor v. United States, 295 U. S. 602, 295 U. S. 629-630 (1935); Kilbourn v. Thompson, 103 U. S. 168, 103 U. S. 190-191 (1881), insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.However, neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide. Page 418 U. S. 707The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence."While the Constitution diffuses power the better to secure liberty, it also contemplate that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 343 U. S. 635 (Jackson, J., concurring). To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under Art. III.C .Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch. The right and indeed the duty to resolve that question does not free the Judiciary from according high respect to the representations made on behalf of the President. United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694) (CC Va. 1807). Page 418 U. S. 708The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government, and inextricably rooted in the separation of powers under the Constitution. [Footnote 17] In Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973), the Court of Appeals held that such Presidential communications are "presumptively privileged," id. at 75, 487 F.2d at 717, and this position is accepted by both parties in the present litigation. We agree with Mr. Chief Justice Marshall's observation, therefore, that "[i]n no case of his kind would a court be required to proceed against the president as against an ordinary individual." United States v. Burr, 25 F. Cas. at 192.But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This Page 418 U. S. 709 is nowhere more profoundly manifest than, in our view, that "the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer." Berger v. United States, 295 U.S. at 295 U. S. 88. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.Only recently the Court restated the ancient proposition of law, albeit in the context of a grand jury inquiry, rather than a trial,"that 'the public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, common law, or statutory privilege, United States v. Bryan, 339 U.S. [323, 339 U. S. 331 (1950)]; Blackmer v. United States, 284 U. S. 421, 284 U. S. 438 (1932). . . ."Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 688 (1972). The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man "shall be compelled in any criminal case to be a witness against himself." And, generally, an attorney or a priest may not be required to disclose what has been revealed in professional confidence. These and other interests are recognized in law by privileges Page 418 U. S. 710 against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth. [Footnote 18]In this case, the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties, the courts have traditionally shown the utmost deference to Presidential responsibilities. In C. & S. Air Lines v. Waterman S.S. Corp., 333 U. S. 103, 333 U. S. 111 (1948), dealing with Presidential authority involving foreign policy considerations, the Court said:"The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret."In United States v. Reynolds, 345 U. S. 1 (1953), dealing Page 418 U. S. 711 with a claimant's demand for evidence in a Tort Claims Act case against the Government, the Court said:"It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers."Id. at 345 U. S. 10. No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right "to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favor." Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.In this case, we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair Page 418 U. S. 712 administration of criminal justice. [Footnote 19] The interest in preserving confidentiality is weighty indeed, and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution. [Footnote 20]On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the court. A President's acknowledged need for confidentiality Page 418 U. S. 713 in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts, a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.We conclude that, when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.DWe have earlier determined that the District Court did not err in authorizing the issuance of the subpoena. If a President concludes that compliance with a subpoena would be injurious to the public interest, he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was "essential to the justice of the [pending criminal] case." United States v. Burr, 25 F. Cas. at 192. Here, the District Court treated the material as presumptively privileged, proceeded to find that the Special Page 418 U. S. 714 Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in camera examination of the subpoenaed material. On the basis of our examination of the record, we are unable to conclude that the District Court erred in ordering the inspection. Accordingly, we affirm the order of the District Court that subpoenaed materials be transmitted to that court. We now turn to the important question of the District Court's responsibilities in conducting the in camera examination of Presidential materials or communications delivered under the compulsion of the subpoena duces tecum.EEnforcement of the subpoena duces tecum was stayed pending this Court's resolution of the issues raised by the petitions for certiorari. Those issues now having been disposed of, the matter of implementation will rest with the District Court."[T]he guard, furnished to [the President] to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of a [district] court after those subpoenas have issued; not in any circumstance which is to precede their being issued."United States v. Burr, 25 F. Cas. at 34. Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised. At this stage, the District Court is not limited to representations of the Special Prosecutor as to the evidence sought by the subpoena; the material will be available to the District Court. It is elementary that in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought. That being true of an ordinary situation, it is obvious that the District Court has Page 418 U. S. 715 a very heavy responsibility to see to it that Presidential conversations, which are either not relevant or not admissible, are accorded that high degree of respect due the President of the United States. Mr. Chief Justice Marshall, sitting as a trial judge in the Burr case, supra, was extraordinarily careful to point out that"[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual."25 F. Cas. at 192. Marshall's statement cannot be read to mean in any sense that a President is above the law, but relates to the singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article. Moreover, a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any "ordinary individual." It is therefore necessary [Footnote 21] in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. We have no doubt that the District Judge will at all times accord to Presidential records that high degree of deference suggested in United States v. Burr, supra, and will discharge his responsibility to see to Page 418 U. S. 716 it that, until released to the Special Prosecutor, no in camera material is revealed to anyone. This burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status, and should be returned under seal to its lawful custodian.Since this matter came before the Court during the pendency of a criminal prosecution, and on representations that time is of the essence, the mandate shall issue forthwith.Affirmed | U.S. Supreme CourtUnited States v. Nixon, 418 U.S. 683 (1974)United States v. NixonNo. 73-1766Argued July 8, 1974Decided July 24, 1974*418 U.S. 683SyllabusFollowing indictment alleging violation of federal statutes by certain staff members of the White House and political supporters of the President, the Special Prosecutor filed a motion under Fed.Rule Crim.Proc. 17(c) for a subpoena duces tecum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of Rule 17(c) had been satisfied. The court thereafter issued an order for an in camera examination of the subpoenaed material, having rejected the President's contentions (a) that the dispute between him and the Special Prosecutor was nonjusticiable as an "intra-executive" conflict and (b) that the judiciary lacked authority to review the President's assertion of executive privilege. The court stayed its order pending appellate review, which the President then sought in the Court of Appeals. The Special Prosecutor then filed in this Court a petition for a writ of certiorari before judgment (No. 73-1766), and the President filed a cross-petition for such a writ challenging the grand jury action (No. 73-1834). The Court granted both petitions.Held:1. The District Court's order was appealable as a "final" order under 28 U.S.C. § 1291, was therefore properly "in" the Court of Appeals, 28 U.S.C. § 1254, when the petition for certiorari before judgment was filed in this Court, and is now properly before this Court for review. Although such an order is normally not final and subject to appeal, an exception is made in a"limited class of Page 418 U. S. 684 cases where denial of immediate review would render impossible any review whatsoever of an individual's claims,"United States v. Ryan, 402 U. S. 530, 402 U. S. 533. Such an exception is proper in the unique circumstances of this case, where it would be inappropriate to subject the President to the procedure of securing review by resisting the order and inappropriate to require that the District Court proceed by a traditional contempt citation in order to provide appellate review. Pp. 418 U. S. 690-692.2. The dispute between the Special Prosecutor and the President presents a justiciable controversy. Pp. 418 U. S. 692-697.(a) The mere assertion of an "intra-branch dispute," without more, does not defeat federal jurisdiction. United States v. ICC, 337 U. S. 426. P. 418 U. S. 693.(b) The Attorney General, by regulation, has conferred upon the Special Prosecutor unique tenure and authority to represent the United States, and has given the Special Prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. While the regulation remains in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260. Pp. 418 U. S. 694-696.(c) The action of the Special Prosecutor within the scope of his express authority seeking specified evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the President's assertion of privilege in opposition thereto, present issues "of a type which are traditionally justiciable," United States v. ICC, supra, at 337 U. S. 430, and the fact that both litigants are officers of the Executive Branch is not a bar to justiciability. Pp. 418 U. S. 696-697.3. From this Court's examination of the material submitted by the Special Prosecutor in support of his motion for the subpoena, much of which is under seal, it is clear that the District Court's denial of the motion to quash comported with Rule 17(c), and that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. Pp. 418 U. S. 697-702.4. Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e.g., 5 U. S. Madison, 1 Cranch 137, 5 U. S. 177; Baker v. Carr, 369 U. S. 186, 369 U. S. 211. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Page 418 U. S. 685 Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Pp. 418 U. S. 703-707.5. Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function, United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice. Pp. 418 U. S. 707-713.6. On the basis of this Court's examination of the record, it cannot be concluded that the District Court erred in ordering in camera examination of the subpoenaed material, which shall now forthwith be transmitted to the District Court. Pp. 418 U. S. 713-714.7. Since a president's communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires that Presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice, and the District Court has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or inadmissible in the criminal prosecution be accorded the high degree of respect due a President, and that such material be returned under seal to its lawful custodian. Until released to the Special Prosecutor, no in camera material is to be released to anyone. Pp. 418 U. S. 714-716.No. 73-1766, 377 F. Supp. 1326, affirmed; No. 73-1834, certiorari dismissed as improvidently granted.BURGER, C.J., delivered the opinion of the Court, in which all Members joined except REHNQUIST, J., who took no part in the consideration or decision of the cases. Page 418 U. S. 686 |
388 | 1988_88-293 | JUSTICE MARSHALL delivered the opinion of the Court.In this case, an artist and the organization that hired him to produce a sculpture contest the ownership of the copyright in that work. To resolve this dispute, we must construe the "work made for hire" provisions of the Copyright Act of 1976 (Act or 1976 Act), 17 U.S.C. §§ 101 and 201(b), and in particular, the provision in § 101, which defines as a "work made for hire" a "work prepared by an employee within the scope of his or her employment" (hereinafter § 101(1)). Page 490 U. S. 733IPetitioners are the Community for Creative Non-Violence (CCNV), a nonprofit unincorporated association dedicated to eliminating homelessness in America, and Mitch Snyder, a member and trustee of CCNV. In the fall of 1985, CCNV decided to participate in the annual Christmastime Pageant of Peace in Washington, D.C., by sponsoring a display to dramatize the plight of the homeless. As the District Court recounted:"Snyder and fellow CCNV members conceived the idea for the nature of the display: a sculpture of a modern Nativity scene in which, in lieu of the traditional Holy Family, the two adult figures and the infant would appear as contemporary homeless people huddled on a streetside steam grate. The family was to be black (most of the homeless in Washington being black); the figures were to be life-sized, and the steam grate would be positioned atop a platform 'pedestal,' or base, within which special effects equipment would be enclosed to emit simulated 'steam' through the grid to swirl about the figures. They also settled upon a title for the work -- 'Third World America' -- and a legend for the pedestal: 'and still there is no room at the inn.'"652 F. Supp. 1453, 1454 (DC 1987).Snyder made inquiries to locate an artist to produce the sculpture. He was referred to respondent James Earl Reid, a Baltimore, Maryland, sculptor. In the course of two telephone calls, Reid agreed to sculpt the three human figures. CCNV agreed to make the steam grate and pedestal for the statue. Reid proposed that the work be cast in bronze, at a total cost of approximately $100,000 and taking six to eight months to complete. Snyder rejected that proposal because CCNV did not have sufficient funds, and because the statue had to be completed by December 12 to be included in the pageant. Reid then suggested, and Snyder agreed, that the Page 490 U. S. 734 sculpture would be made of a material known as "Design Cast 62," a synthetic substance that could meet CCNV's monetary and time constraints, could be tinted to resemble bronze, and could withstand the elements. The parties agreed that the project would cost no more than $15,000, not including Reid's services, which he offered to donate. The parties did not sign a written agreement. Neither party mentioned copyright.After Reid received an advance of $3,000, he made several sketches of figures in various poses. At Snyder's request, Reid sent CCNV a sketch of a proposed sculpture showing the family in a creche-like setting: the mother seated, cradling a baby in her lap; the father standing behind her, bending over her shoulder to touch the baby's foot. Reid testified that Snyder asked for the sketch to use in raising funds for the sculpture. Snyder testified that it was also for his approval. Reid sought a black family to serve as a model for the sculpture. Upon Snyder's suggestion, Reid visited a family living at CCNV's Washington shelter, but decided that only their newly born child was a suitable model. While Reid was in Washington, Snyder took him to see homeless people living on the streets. Snyder pointed out that they tended to recline on steam grates, rather than sit or stand, in order to warm their bodies. From that time on, Reid's sketches contained only reclining figures.Throughout November and the first two weeks of December, 1985, Reid worked exclusively on the statue, assisted at various times by a dozen different people who were paid with funds provided in installments by CCNV. On a number of occasions, CCNV members visited Reid to check on his progress and to coordinate CCNV's construction of the base. CCNV rejected Reid's proposal to use suitcases or shopping bags to hold the family's personal belongings, insisting instead on a shopping cart. Reid and CCNV members did not discuss copyright ownership on any of these visits. Page 490 U. S. 735On December 24, 1985, 12 days after the agreed-upon date, Reid delivered the completed statue to Washington. There it was joined to the steam grate and pedestal prepared by CCNV, and placed on display near the site of the pageant. Snyder paid Reid the final installment of the $15,000. The statue remained on display for a month. In late January, 1986, CCNV members returned it to Reid's studio in Baltimore for minor repairs. Several weeks later, Snyder began making plans to take the statue on a tour of several cities to raise money for the homeless. Reid objected, contending that the Design Cast 62 material was not strong enough to withstand the ambitious itinerary. He urged CCNV to cast the statue in bronze at a cost of $35,000, or to create a master mold at a cost of $5,000. Snyder declined to spend more of CCNV's money on the project.In March, 1986, Snyder asked Reid to return the sculpture. Reid refused. He then filed a certificate of copyright registration for "Third World America" in his name, and announced plans to take the sculpture on a more modest tour than the one CCNV had proposed. Snyder, acting in his capacity as CCNV's trustee, immediately filed a competing certificate of copyright registration.Snyder and CCNV then commenced this action against Reid and his photographer, Ronald Purtee, [Footnote 1] seeking return of the sculpture and a determination of copyright ownership. The District Court granted a preliminary injunction, ordering the sculpture's return. After a 2-day bench trial, the District Court declared that "Third World America" was a "work made for hire" under § 101 of the Copyright Act, and that Snyder, as trustee for CCNV, was the exclusive owner of the copyright in the sculpture. 652 F. Supp. at 1457. The court reasoned that Reid had been an "employee" of CCNV within the meaning of § 101(1) because CCNV was the motivating force in the statue's production. Snyder and Page 490 U. S. 736 other CCNV members, the court explained, "conceived the idea of a contemporary Nativity scene to contrast with the national celebration of the season," and "directed enough of [Reid's] effort to assure that, in the end, he had produced what they, not he, wanted." Id. at 1456.The Court of Appeals for the District of Columbia Circuit reversed and remanded, holding that Reid owned the copyright because "Third World America" was not a work for hire. 270 U.S.App.D.C. 26, 35, 846 F.2d 1485, 1494 (1988). Adopting what it termed the "literal interpretation" of the Act as articulated by the Fifth Circuit in Easter Seal Society for Crippled Children and Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F.2d 323, 329 (1987), cert. denied, 485 U.S. 981 (1988), the court read § 101 as creating "a simple dichotomy in fact between employees and independent contractors." 270 U.S.App.D.C. at 33, 846 F.2d at 1492. Because, under agency law, Reid was an independent contractor, the court concluded that the work was not "prepared by an employee" under § 101(1). Id. at 35, 846 F.2d at 1494. Nor was the sculpture a "work made for hire" under the second subsection of § 101 (hereinafter § 101(2)): sculpture is not one of the nine categories of works enumerated in that subsection, and the parties had not agreed in writing that the sculpture would be a work for hire. Ibid. The court suggested that the sculpture nevertheless may have been jointly authored by CCNV and Reid, id. at 36, 846 F.2d at 1495, and remanded for a determination whether the sculpture is indeed a joint work under the Act, id. at 39-40, 846 F.2d at 1498-1499.We granted certiorari to resolve a conflict among the Courts of Appeals over the proper construction of the "work made for hire" provisions of the Act. [Footnote 2] 488 U.S. 940 (1988). We now affirm. Page 490 U. S. 737IIAThe Copyright Act of 1976 provides that copyright ownership "vests initially in the author or authors of the work." 17 U.S.C. § 201(a). As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. § 102. The Act carves out an important exception, however, for "works made for hire." [Footnote 3] If the work is for hire, "the employer or other person for whom the work was prepared is considered the author," and owns the copyright, unless there is a written agreement to the contrary. § 201(b). Classifying a work as "made for hire" determines not only the initial ownership of its copyright, but also the copyright's duration, § 302(c), and the owners' renewal rights, § 304(a), termination rights, § 203(a), and right to import certain goods bearing the copyright, § 601(b)(1). See 1 M. Nimmer & D. Nimmer, Nimmer on Copyright § 5.03 [A], pp. 5-10 (1988). The contours of the work for hire doctrine therefore carry profound significance for freelance creators -- including artists, writers, photographers, designers, composers, and computer programmers -- and for the publishing, advertising, music, and other industries which commission their works. [Footnote 4] Page 490 U. S. 738Section 101 of the 1976 Act provides that a work is "for hire" under two sets of circumstances:"(1) a work prepared by an employee within the scope of his or her employment; or""(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. [Footnote 5]"Petitioners do not claim that the statue satisfies the terms of § 101(2). Quite clearly, it does not. Sculpture does not fit within any of the nine categories of "specially ordered or commissioned" works enumerated in that subsection, and no written agreement between the parties establishes "Third World America" as a work for hire.The dispositive inquiry in this case therefore is whether "Third World America" is "a work prepared by an employee within the scope of his or her employment" under § 101(1). The Act does not define these terms. In the absence of such guidance, four interpretations have emerged. The first holds that a work is prepared by an employee whenever the hiring party [Footnote 6] retains the right to control the product. See Peregrine v. Lauren Corp., 601 F. Supp. 828, 829 (Colo.1985); Clarkstown v. Reeder, 566 F. Supp. 137, 142 (SDNY 1983). Page 490 U. S. 739 Petitioners take this view. Brief for Petitioners 15; Tr. of Oral. Arg. 12. A second, and closely related, view is that a work is prepared by an employee under § 101(1) when the hiring party has actually wielded control with respect to the creation of a particular work. This approach was formulated by the Court of Appeals for the Second Circuit, Aldon Accessories Ltd. v. Spiegel, Inc., 738 F.2d 548, cert. denied, 469 U.S. 982 (1984), and adopted by the Fourth Circuit, Brunswick Beacon, Inc. v. Schock-Hopchas Publishing Co., 810 F.2d 410 (1987), the Seventh Circuit, Evans Newton, Inc. v. Chicago Systems Software, 793 F.2d 889, cert. denied, 479 U.S. 949 (1986), and, at times, by petitioners, Brief for Petitioners 17. A third view is that the term "employee" within § 101(1) carries its common law agency law meaning. This view was endorsed by the Fifth Circuit in Easter Seal Society for Crippled Children and Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F.2d 323 (1987), and by the Court of Appeals below. Finally, respondent and numerous amici curiae contend that the term "employee" only refers to "formal, salaried" employees. See, e.g., Brief for Respondent 23-24; Brief for Register of Copyrights as Amicus Curiae 7. The Court of Appeals for the Ninth Circuit recently adopted this view. See Dumas v. Gommerman, 865 F.2d 1093 (1989).The starting point for our interpretation of a statute is always its language. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980). The Act nowhere defines the terms "employee" or "scope of employment." It is, however, well established that"[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms."NLRB v. Amax Coal Co., 453 U. S. 322, 453 U. S. 329 (1981); see also Perrin v. United States, 444 U. S. 37, 444 U. S. 42 (1979). In the past, when Congress has used the term "employee" without defining it, Page 490 U. S. 740 we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common law agency doctrine. See, e.g., Kelley v. Southern Pacific Co., 419 U. S. 318, 419 U. S. 322-323 (1974); Baker v. Texas & Pacific R. Co., 359 U. S. 227, 359 U. S. 228 (1959) (per curiam); Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84, 237 U. S. 94 (1915). Nothing in the text of the work for hire provisions indicates that Congress used the words "employee" and "employment" to describe anything other than "the conventional relation of employer and employe.'" Kelley, supra, at 419 U. S. 323, quoting Robinson, supra, at 237 U. S. 94; compare NLRB v. Hearst Publications, Inc., 322 U. S. 111, 322 U. S. 124-132 (1944) (rejecting agency law conception of employee for purposes of the National Labor Relations Act where structure and context of statute indicated broader definition). On the contrary, Congress' intent to incorporate the agency law definition is suggested by § 101(1)'s use of the term, "scope of employment," a widely used term of art in agency law. See Restatement (Second) of Agency § 228 (1958) (hereinafter Restatement).In past cases of statutory interpretation, when we have concluded that Congress intended terms such as "employee," "employer," and "scope of employment" to be understood in light of agency law, we have relied on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms. See, e.g., Kelley, 419 U.S. at 419 U. S. 323-324, and n. 5; id. at 419 U. S. 332 (Stewart, J., concurring in judgment); Ward v. Atlantic Coast Line R. Co., 362 U. S. 396, 362 U. S. 400 (1960); Baker, supra, at 359 U. S. 228. This practice reflects the fact that "federal statutes are generally intended to have uniform nationwide application." Mississippi Band of Choctaw Indians v. Holyfield, ante at 43. Establishment of a federal rule of agency, rather than reliance on state agency law, is particularly appropriate here, given the Act's express objective of creating national, uniform copyright law by broadly preempting state statutory and common law copyright regulation. See 17 U.S.C. § 301(a). We thus Page 490 U. S. 741 agree with the Court of Appeals that the term "employee" should be understood in light of the general common law of agency.In contrast, neither test proposed by petitioners is consistent with the text of the Act. The exclusive focus of the right to control the product test on the relationship between the hiring party and the product clashes with the language of § 101(1), which focuses on the relationship between the hired and hiring parties. The right to control the product test also would distort the meaning of the ensuing subsection, § 101(2). Section 101 plainly creates two distinct ways in which a work can be deemed for hire: one for works prepared by employees, the other for those specially ordered or commissioned works which fall within one of the nine enumerated categories and are the subject of a written agreement. The right to control the product test ignores this dichotomy by transforming into a work for hire under § 101(1) any "specially ordered or commissioned" work that is subject to the supervision and control of the hiring party. Because a party who hires a "specially ordered or commissioned" work by definition has a right to specify the characteristics of the product desired, at the time the commission is accepted, and frequently until it is completed, the right to control the product test would mean that many works that could satisfy § 101(2) would already have been deemed works for hire under § 101(1). Petitioners' interpretation is particularly hard to square with § 101(2)'s enumeration of the nine specific categories of specially ordered or commissioned works eligible to be works for hire, e.g., "a contribution to a collective work," "a part of a motion picture," and "answer material for a test." The unifying feature of these works is that they are usually prepared at the instance, direction, and risk of a publisher or producer. [Footnote 7] By their very nature, therefore, these types of Page 490 U. S. 742 works would be works by an employee under petitioners' right to control the product test.The actual control test, articulated by the Second Circuit in Aldon Accessories, fares only marginally better when measured against the language and structure of § 101. Under this test, independent contractors who are so controlled and supervised in the creation of a particular work are deemed "employees" under § 101(1). Thus, work for hire status under § 101(1) depends on a hiring party's actual control of, rather than right to control, the product. Aldon Accessories, 738 F.2d at 552. Under the actual control test, a work for hire could arise under § 101(2), but not under § 101(1), where a party commissions, but does not actually control, a product which falls into one of the nine enumerated categories. Nonetheless, we agree with the Fifth Circuit Court of Appeals that "[t]here is simply no way to milk the actual control' test of Aldon Accessories from the language of the statute." Easter Seal Society, 815 F.2d at 334. Section 101 clearly delineates between works prepared by an employee and commissioned works. Sound though other distinctions might be as a matter of copyright policy, there is no statutory support for an additional dichotomy between commissioned works that are actually controlled and supervised by the hiring party and those that are not.We therefore conclude that the language and structure of § 101 of the Act do not support either the right to control the product or the actual control approaches. [Footnote 8] The structure of Page 490 U. S. 743 § 101 indicates that a work for hire can arise through one of two mutually exclusive means, one for employees and one for independent contractors, and ordinary canons of statutory interpretation indicate that the classification of a particular hired party should be made with reference to agency law.This reading of the undefined statutory terms finds considerable support in the Act's legislative history. Cf. Diamond v. Chakrabarty, 447 U. S. 303, 447 U. S. 315 (1980). The Act, which almost completely revised existing copyright law, was the product of two decades of negotiation by representatives of creators and copyright-using industries, supervised by the Copyright Office and, to a lesser extent, by Congress. See Mills Music, Inc. v. Snyder, 469 U. S. 153, 469 U. S. 159 (1985); Litman, Copyright, Compromise, and Legislative History, 72 Cornell L.Rev. 857, 862 (1987). Despite the lengthy history of negotiation and compromise which ultimately produced the Act, two things remained constant. First, interested parties and Congress at all times viewed works by employees and commissioned works by independent contractors as separate entities. Second, in using the term "employee," the parties and Congress meant to refer to a hired party in a conventional employment relationship. These factors militate in favor of the reading we have found appropriate.In 1955, when Congress decided to overhaul copyright law, the existing work for hire provision was § 62 of the 1909 Copyright Act, 17 U.S.C. § 26 (1976 ed.) (1909 Act). It provided that "the word author' shall include an employer in Page 490 U. S. 744 the case of works made for hire." [Footnote 9] Because the 1909 Act did not define "employer" or "works made for hire," the task of shaping these terms fell to the courts. They concluded that the work for hire doctrine codified in § 62 referred only to works made by employees in the regular course of their employment. As for commissioned works, the courts generally presumed that the commissioned party had impliedly agreed to convey the copyright, along with the work itself, to the hiring party. See, e.g., Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 221 F.2d 569, 570, aff'd, 223 F.2d 252 (CA2 1955); Yardley v. Houghton Mifflin Co., 108 F.2d 28, 31 (CA2 1939), cert. denied, 309 U.S. 686 (1940). [Footnote 10]In 1961, the Copyright Office's first legislative proposal retained the distinction between works by employees and works by independent contractors. See Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess., Copyright Law Revision 86-87 (H. Judiciary Comm. Print 1961). After numerous meetings with representatives of the affected parties, the Copyright Office issued a preliminary draft bill in 1963. Adopting the Register's recommendation, it defined "work Page 490 U. S. 745 made for hire" as"a work prepared by an employee within the scope of the duties of his employment, but not including a work made on special order or commission."Preliminary Draft for Revised U.S. Copyright Law and Discussions and Comments on the Draft, 88th Cong., 2d Sess., Copyright Law Revision, Part 3, p. 15, n. 11 (H. Judiciary Comm. Print 1964) (hereinafter Preliminary Draft).In response to objections by book publishers that the preliminary draft bill limited the work for hire doctrine to "employees," [Footnote 11] the 1964 revision bill expanded the scope of the work for hire classification to reach, for the first time, commissioned works. The bill's language, proposed initially by representatives of the publishing industry, retained the definition of work for hire insofar as it referred to "employees," but added a separate clause covering commissioned works, without regard to the subject matter, "if the parties so agree in writing." S. 3008, H.R. 11947, H.R. 12354, 88th Cong., 2d Sess., § 54 (1964), reproduced in 1964 Revision Bill with Discussions and Comments, 89th Cong., 1st Sess., Copyright Law Revision, pt. 5, p. 31 (H.R. Judiciary Comm. Print 1965). Those representing authors objected that the added provision would allow publishers to use their superior bargaining position to force authors to sign work for hire agreements, Page 490 U. S. 746 thereby relinquishing all copyright rights as a condition of getting their books published. See Supplementary Report, at 67.In 1965, the competing interests reached an historic compromise, which was embodied in a joint memorandum submitted to Congress and the Copyright Office, [Footnote 12] incorporated into the 1965 revision bill, and ultimately enacted in the same form and nearly the same terms 11 years later, as § 101 of the 1976 Act. The compromise retained as subsection (1) the language referring to "a work prepared by an employee within the scope of his employment." However, in exchange for concessions from publishers on provisions relating to the termination of transfer rights, the authors consented to a second subsection which classified four categories of commissioned works as works for hire if the parties expressly so agreed in writing: works for use "as a contribution to a collective work, as a part of a motion picture, as a translation, or as supplementary work." S. 1006, H.R. 4347, H.R. 5680, H.R. 6835, 89th Cong., 1st Sess., § 101 (1965). The interested parties selected these categories because they concluded that these commissioned works, although not prepared by employees, and thus not covered by the first subsection, nevertheless should be treated as works for hire because they were ordinarily prepared "at the instance, direction, and risk of a publisher or producer." Supplementary Report, at 67. The Supplementary Report emphasized that only the "four special cases specifically mentioned" could qualify as works made for hire; "[o]ther works made on special order or commission would not come within the definition." Id. at 67-68. Page 490 U. S. 747In 1966, the House Committee on the Judiciary endorsed this compromise in the first legislative report on the revision bills. See H.R.Rep. No. 2237, 89th Cong., 2d Sess., 114, 116 (1966). Retaining the distinction between works by employees and commissioned works, the House Committee focused instead on"how to draw a statutory line between those works written on special order or commission that should be considered as works made for hire, and those that should not."Id. at 115. The House Committee added four other enumerated categories of commissioned works that could be treated as works for hire: compilations, instructional texts, tests, and atlases. Id. at 116. With the single addition of "answer material for a test," the 1976 Act, as enacted, contained the same definition of works made for hire as did the 1966 revision bill, and had the same structure and nearly the same terms as the 1966 bill. [Footnote 13] Indeed, much of the language of the 1976 House and Senate Reports was borrowed from the Reports accompanying the earlier drafts. See, e.g., H.R.Rep. No. 94-1476, p. 121 (1976); S.Rep. No. 94-473, p. 105 (1975).Thus, the legislative history of the Act is significant for several reasons. First, the enactment of the 1965 compromise with only minor modifications demonstrates that Congress intended to provide two mutually exclusive ways for works to acquire work for hire status: one for employees and Page 490 U. S. 748 the other for independent contractors. Second, the legislative history underscores the clear import of the statutory language: only enumerated categories of commissioned works may be accorded work for hire status. The hiring party's right to control the product simply is not determinative. See Note, The Creative Commissioner: Commissioned Works Under the Copyright Act of 1976, 62 N.Y.U.L.Rev. 373, 388 (1987). Indeed, importing a test based on a hiring party's right to control, or actual control of, a product would unravel the "carefully worked-out compromise aimed at balancing legitimate interests on both sides.'" H.R.Rep. No. 2237, supra, at 114, quoting Supplemental Report, at 66. [Footnote 14]We do not find convincing petitioners' contrary interpretation of the history of the Act. They contend that Congress, in enacting the Act, meant to incorporate a line of cases decided under the 1909 Act holding that an employment relationship exists sufficient to give the hiring party copyright ownership whenever that party has the right to control or supervise the artist's work. See, e.g., Siegel v. National Periodical Publications, Inc., 508 F.2d 909, 914 (CA2 1974); Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (CA2), cert. denied, 409 U.S. 997 (1972); Scherr v. Universal Match Corp., 417 F.2d 497, 500 (CA2 1969), cert. denied, 397 U.S. 936 (1970); Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567-568 (CA2 1966). In support of this position, petitioners note:"Nowhere in the 1976 Act or in the Act's legislative history does Congress state that it intended to jettison the control standard or otherwise to reject the pre-Act judicial approach to identifying a Page 490 U. S. 749 work for hire employment relationship."Brief for Petitioners 20, citing Aldon Accessories, 738 F.2d at 552.We are unpersuaded. Ordinarily, "Congress' silence is just that -- silence." Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 480 U. S. 686 (1987). Petitioners' reliance on legislative silence is particularly misplaced here, because the text and structure of § 101 counsel otherwise. See Bourjaily v. United States, 483 U. S. 171, 483 U. S. 178 (1987); Harrison v. PPG Industries, Inc., 446 U. S. 578, 446 U. S. 592 (1980). [Footnote 15] Furthermore, the structure of the work for hire provisions was fully developed in 1965, and the text was agreed upon in essentially final form by 1966. At that time, however, the courts had applied the work for hire doctrine under the 1909 Act exclusively to traditional employees. Indeed, it was not until after the 1965 compromise was forged and adopted by Congress [Footnote 16] that a federal court for the first time applied the work for hire doctrine to commissioned works. See, e.g., Brattleboro Publishing Co., supra, at 567-568. Congress certainly could not have "jettisoned" a line of cases that had not yet been decided.Finally, petitioners' construction of the work for hire provisions would impede Congress' paramount goal in revising the 1976 Act of enhancing predictability and certainty of copyright ownership. See H.R.Rep. No. 94-1476, supra, at 129. In a "copyright marketplace," the parties negotiate with an expectation that one of them will own the copyright in the completed work. Dumas, 865 F.2d at 1104-1105, Page 490 U. S. 750 n. 18. With that expectation, the parties at the outset can settle on relevant contractual terms, such as the price for the work and the ownership of reproduction rights.To the extent that petitioners endorse an actual control test, [Footnote 17] CCNV's construction of the work for hire provisions prevents such planning. Because that test turns on whether the hiring party has closely monitored the production process, the parties would not know until late in the process, if not until the work is completed, whether a work will ultimately fall within § 101(1). Under petitioners' approach, therefore, parties would have to predict in advance whether the hiring party will sufficiently control a given work to make it the author."If they guess incorrectly, their reliance on 'work for hire' or an assignment may give them a copyright interest that they did not bargain for."Easter Seal Society, 815 F.2d at 333; accord, Dumas, 865 F.2d at 1103. This understanding of the work for hire provisions clearly thwarts Congress' goal of ensuring predictability through advance planning. Moreover, petitioners' interpretation"leaves the door open for hiring parties, who have failed to get a full assignment of copyright rights from independent contractors falling outside the subdivision (2) guidelines, to unilaterally obtain work-made-for-hire rights years after the work has been completed as long as they directed or supervised the work, a standard that is hard not to meet when one is a hiring party."Hamilton, Commissioned Works as Works Made for Hire Under the 1976 Copyright Act: Misinterpretation and Injustice, 135 U.Pa.L.Rev. 1281, 1304 (1987).In sum, we must reject petitioners' argument. Transforming a commissioned work into a work by an employee on the basis of the hiring party's right to control, or actual control of, the work is inconsistent with the language, structure, and legislative history of the work for hire provisions. To Page 490 U. S. 751 determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor. After making this determination, the court can apply the appropriate subsection of § 101.BWe turn, finally, to an application of § 101 to Reid's production of "Third World America." In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. [Footnote 18] Among the other factors relevant to this inquiry are the skill required; [Footnote 19] the source of the instrumentalities and tools; [Footnote 20] the location of the work; [Footnote 21] the duration of the relationship between the parties; [Footnote 22] whether the hiring party has the right to assign additional projects to the hired party; [Footnote 23] the extent of the hired party's discretion over when and how long to work; [Footnote 24] the method of payment; [Footnote 25] the hired party's role in hiring and Page 490 U. S. 752 paying assistants; [Footnote 26] whether the work is part of the regular business of the hiring party; [Footnote 27] whether the hiring party is in business; [Footnote 28] the provision of employee benefits; [Footnote 29] and the tax treatment of the hired party. [Footnote 30] See Restatement § 220(2) (setting forth a nonexhaustive list of factors relevant to determining whether a hired party is an employee). [Footnote 31] No one of these factors is determinative. See Ward, 362 U.S. at 362 U. S. 400; Hilton Int'l Co. v. NLRB, 690 F.2d 318, 321 (CA2 1982).Examining the circumstances of this case in light of these factors, we agree with the Court of Appeals that Reid was not an employee of CCNV, but an independent contractor. 270 U.S.App.D.C. at 35, n. 11, 846 F.2d at 1494, n. 11. True, CCNV members directed enough of Reid's work to ensure that he produced a sculpture that met their specifications. 652 F. Supp. at 1456. But the extent of control the hiring party exercises over the details of the product is not dispositive. Indeed, all the other circumstances weigh heavily against finding an employment relationship. Reid is a sculptor, a skilled occupation. Reid supplied his own tools. He worked in his own studio in Baltimore, making daily supervision of his activities from Washington practicably impossible. Reid was retained for less than two months, a relatively Page 490 U. S. 753 short period of time. During and after this time, CCNV had no right to assign additional projects to Reid. Apart from the deadline for completing the sculpture, Reid had absolute freedom to decide when and how long to work. CCNV paid Reid $15,000, a sum dependent on "completion of a specific job, a method by which independent contractors are often compensated." Holt v. Winpisinger, 258 U.S.App.D.C. 343, 351, 811 F.2d 1532, 1540 (1987). Reid had total discretion in hiring and paying assistants. "Creating sculptures was hardly regular business' for CCNV." 270 U.S.App.D.C. at 35, n. 11, 846 F.2d at 1494, n. 11. Indeed, CCNV is not a business at all. Finally, CCNV did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers' compensation funds.Because Reid was an independent contractor, whether "Third World America" is a work for hire depends on whether it satisfies the terms of § 101(2). This petitioners concede it cannot do. Thus, CCNV is not the author of "Third World America" by virtue of the work for hire provisions of the Act. However, as the Court of Appeals made clear, CCNV nevertheless may be a joint author of the sculpture if, on remand, the District Court determines that CCNV and Reid prepared the work "with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. § 101. [Footnote 32] In that case, CCNV and Reid would be co-owners of the copyright in the work. See § 201(a).For the aforestated reasons, we affirm the judgment of the Court of Appeals for the District of Columbia Circuit.It is so ordered | U.S. Supreme CourtCommun. for Non-Violence v. Reid, 490 U.S. 730 (1989)Commun. for Creative Non-Violence v. ReidNo. 88-293Argued March 29, 1989Decided June 5, 1989490 U.S. 730SyllabusIn the fall of 1985, petitioners -- the Community for Creative Non-Violence (CCNV), a Washington, D.C. organization dedicated to eliminating homelessness, and one of its trustees -- entered into an oral agreement with respondent Reid, a sculptor, to produce a statue dramatizing the plight of the homeless for display at a 1985 Christmas pageant in Washington. While Reid worked on the statue in his Baltimore, Md. studio, CCNV members visited him on a number of occasions to check on his progress and to coordinate CCNV's construction of the sculpture's base in accordance with the parties' agreement. Reid accepted most of CCNV's suggestions and directions as to the sculpture's configuration and appearance. After the completed work was delivered to Washington, CCNV paid Reid the final installment of the agreed-upon price, joined the sculpture to its base, and displayed it. The parties, who had never discussed copyright in the sculpture, then filed competing copyright registration certificates. The District Court ruled for CCNV in its subsequent suit seeking, inter alia, a determination of copyright ownership, holding that the statue was a "work made for hire" as defined in the Copyright Act of 1976, 17 U.S.C. § 101, and was therefore owned exclusively by CCNV under § 201(b), which vests copyright ownership of works for hire in the employer or other person for whom the work is prepared, unless there is a written agreement to the contrary. The Court of Appeals reversed, holding that the sculpture was not a "work made for hire" under the first subsection of the § 101 definition (hereinafter § 101(1)), since it was not "prepared by an employee within the scope of his or her employment" in light of Reid's status as an independent contractor under agency law. The court also ruled that the statue did not satisfy the second subsection of the § 101 definition (hereinafter § 101(2)), since sculpture is not one of the nine categories of "specially ordered or commissioned" works enumerated therein, and the parties had not agreed in writing that the sculpture would be a work for hire. However, the court remanded for a determination whether the statue was jointly authored by CCNV and Reid, such that they were co-owners of the copyright under § 201(a). Page 490 U. S. 731Held:1. To determine whether a work is a "work made for hire" within the § 101 definition, a court should first apply general common law of agency principles to ascertain whether the work was prepared by an employee or an independent contractor, and, depending upon the outcome, should then apply either § 101(1) or § 101(2). Although the Act nowhere defines "employee," "employment," or related terms, it must be inferred that Congress meant them in their settled, common law sense, since nothing in the text of the work for hire provisions indicates that those terms are used to describe anything other than the conventional relation of employer and employee. On the contrary, Congress' intent to incorporate agency law definitions is suggested by § 101(1)'s use of the term "scope of employment," a widely used agency law term of art. Moreover, the general common law of agency must be relied on, rather than the law of any particular State, since the Act is expressly intended to create a federal law of uniform, nationwide application by broadly preempting state statutory and common law copyright regulation. Petitioners' argument that a work is "prepared by an employee within the scope of his or her employment" whenever the hiring party retains the right to control, or actually controls, the work is inconsistent with the language and legislative history of the work for hire provisions, and would distort the provisions' structure, which views works by employees and commissioned works by independent contractors as mutually exclusive entities. Pp. 490 U. S. 737-751.2. The sculpture in question is not a "work made for hire" within the meaning of § 101. Reid was an independent contractor, rather than a § 101(1) "employee," since, although CCNV members directed enough of the work to ensure that the statue met their specifications, all other relevant circumstances weigh heavily against finding an employment relationship. Reid engages in a skilled occupation; supplied his own tools; worked in Baltimore without daily supervision from Washington; was retained for a relatively short period of time; had absolute freedom to decide when and how long to work in order to meet his deadline; and had total discretion in hiring and paying assistants. Moreover, CCNV had no right to assign additional projects to Reid; paid him in a manner in which independent contractors are often compensated; did not engage regularly in the business of creating sculpture or, in fact, in any business; and did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers' compensation funds. Furthermore, as petitioners concede, the work in question does not satisfy the terms of § 101(2). Pp. 490 U. S. 751-753.3. However, CCNV nevertheless may be a joint author of the sculpture and, thus, a co-owner of the copyright under § 201(a), if, on remand, Page 490 U. S. 732 the District Court determines that the parties prepared the work with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. P. 490 U. S. 753.270 U.S.App.D.C. 26, 846 F.2d 1485, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court. |
389 | 1981_81-613 | JUSTICE STEVENS delivered the opinion of the Court.Appellants challenge the constitutionality of a Nebraska statutory restriction on the withdrawal of groundwater from any well within Nebraska intended for use in an adjoining State. The challenge presents three questions under the Commerce Clause: [Footnote 1] (1) whether groundwater is an article of commerce and therefore subject to congressional regulation; (2) whether the Nebraska restriction on the interstate transfer of groundwater imposes an impermissible burden on commerce; and (3) whether Congress has granted the States permission to engage in groundwater regulation that otherwise would be impermissible. Page 458 U. S. 944Appellants jointly own contiguous tracts of land in Chase County, Nebraska, and Phillips County, Colorado. A well physically located on the Nebraska tract pumps groundwater for irrigation of both the Nebraska tract and the Colorado tract. Previous owners of the land registered the well with the State of Nebraska in 1971, but neither they nor the present owners applied for the permit required by Neb.Rev.Stat. § 46-613.01 (1978). That section provides:"Any person, firm, city, village, municipal corporation or any other entity intending to withdraw groundwater from any well or pit located in the State of Nebraska and transport it for use in an adjoining state shall apply to the Department of Water Resources for a permit to do so. If the Director of Water Resources finds that the withdrawal of the groundwater requested is reasonable, is not contrary to the conservation and use of groundwater, and is not otherwise detrimental to the public welfare, he shall grant the permit if the state in which the water is to be used grants reciprocal rights to withdraw and transport groundwater from that state for use in the State of Nebraska."Appellee brought this action to enjoin appellants from transferring the water across the border without a permit. [Footnote 2] The trial court rejected the defense that the statute imposed an undue burden on interstate commerce and granted the injunction. The Nebraska Supreme Court affirmed. 208 Neb. 703, 305 N.W.2d 614 (1981). It held that, under Nebraska law, groundwater is not "a market item freely transferable for value among private parties, and therefore [is] not an article of commerce." Id. at 705, 305 N.W.2d at Page 458 U. S. 945 616. [Footnote 3] The Chief Justice, while agreeing that the statutory criteria governing the transfer of water to an adjoining State did not violate the Commerce Clause, dissented on the narrow ground that appellee violated both the Federal and Nebraska Constitutions by attempting"to absolutely prohibit the transfer of water, without regard to its need or availability, based solely upon the acts of another state over which citizens of this state have no control."Id. at 713, 305 N.W.2d at 20.IIn holding that groundwater is not an article of commerce, the Nebraska Supreme Court and appellee cite as controlling precedent Hudson County Water Co. v. McCarter, 209 U. S. 349 (1908). In that case, a New Jersey statute prohibited the interstate transfer of any surface water located within the State. [Footnote 4] The Hudson County Water Co. nevertheless contracted with New York City to supply one of its boroughs with water from the Passaic River in New Jersey. The State Attorney General sought from the New Jersey courts an injunction against fulfillment of the contract. Over the water company's objections that the statute impaired the obligation of contract, took property without just compensation, interfered with interstate commerce, denied New York citizens the privileges afforded New Jersey citizens, and denied New York citizens the equal protection of the laws, the injunction was granted. This Court, in an opinion by Justice Holmes, affirmed. Page 458 U. S. 946Most of the Court's opinion addresses the just compensation claim. Justice Holmes refused to ground the Court's holding, as did the New Jersey state courts, [Footnote 5] on "the more or less attenuated residuum of title that the State may be said to possess." Id. at 209 U. S. 355. For the statute was justified as a regulatory measure that, on balance, did not amount to a taking of property that required just compensation. Putting aside the "problems of irrigation," the State's interest in preserving its waters was well within its police power. [Footnote 6] That interest was not dependent on any demonstration that the State's water resources were inadequate for present or future use. The State "finds itself in possession of what all admit to be a great public good, and what it has it may keep and give no one a reason for its will." Id. at 209 U. S. 357.Having disposed of the just compensation claim, Justice Holmes turned very briefly to the other constitutional challenges. Page 458 U. S. 947 In one paragraph, he rejected the Contract Clause claim. In the remaining paragraph of the opinion, he rejected all the other defenses. His treatment of the Commerce Clause challenge consists of three sentences:"A man cannot acquire a right to property by his desire to use it in commerce among the States. Neither can he enlarge his otherwise limited and qualified right to the same end. The case is covered in this respect by Geer v. Connecticut, 161 U. S. 519 [(1896)]."Ibid.While appellee relies upon Hudson County, appellants rest on our summary affirmance of a three-judge District Court judgment in City of Altus v. Carr, 255 F. Supp. 828 (WD Tex.), summarily aff'd, 385 U. S. 35 (1966). The city of Altus is located near the southern border of Oklahoma. Large population increases rendered inadequate its source of municipal water. It consequently obtained from the owners of land in an adjoining Texas county the contractual right to pump the groundwater underlying that land and to transport it across the border. The Texas Legislature thereafter enacted a statute that forbade the interstate exportation of groundwater without the approval of that body. [Footnote 7] The city filed suit in Federal District Court, claiming that the statute violated the Commerce Clause.The city relied upon West v. Kansas Natural Gas Co., 221 U. S. 229 (1911), which invalidated an Oklahoma statute that prevented the interstate transfer of natural gas produced within the State, [Footnote 8] and Pennsylvania v. West Virginia, 262 U. S. 553 (1923), which invalidated a West Virginia statute Page 458 U. S. 948 that accorded a preference to the citizens of that State in the purchase of natural gas produced therein. [Footnote 9] The Texas Attorney General defended the statute on two grounds. First, he asserted that its purpose was to conserve and protect the State's water resources by regulating the withdrawal of groundwater. The District Court rejected that defense because similar conservation claims had met defeat in West v. Kansas Natural Gas Co., supra, and Pennsylvania v. West Virginia, supra. [Footnote 10] Second, the State argued that the statute regulated groundwater, and that groundwater is not an article of commerce, citing Geer v. Connecticut, 161 U. S. 519 (1896), and Hudson County Water Co. v. McCarter, 209 U. S. 349 (1908). The court rejected this argument, since the statute directly regulated the interstate transportation of Page 458 U. S. 949 water that had been pumped from the ground, and, under Texas law, such water was an article of commerce. The court then had little difficulty in concluding that the statute imposed an impermissible burden on interstate commerce. [Footnote 11]In summarily affirming the District Court in City of Altus, we did not necessarily adopt the court's reasoning. Our affirmance indicates only our agreement with the result reached by the District Court. Metromedia, Inc. v. San Diego, 453 U. S. 490, 453 U. S. 499 (1981). That result is not necessarily inconsistent with the Nebraska Supreme Court's holding in this case. For Texas law differs significantly from Nebraska law regarding the rights of a surface owner to groundwater that he has withdrawn. According to the District Court in City of Altus, the"rule in Texas was that an owner of land could use all of the percolating water he could capture from the wells on his land for whatever beneficial purposes he needed it, on or off the land, and could likewise sell it to others for use on or off the land and outside the basin where produced, just as he could sell any other species of property."255 F. Supp. at 833, n. 8. Since groundwater, once withdrawn, may be freely bought and sold in States that follow this rule, in those States, groundwater is appropriately regarded Page 458 U. S. 950 as an article of commerce. In Nebraska, the surface owner has no comparable interest in groundwater. As explained by the Nebraska Supreme Court,"'the owner of land is entitled to appropriate subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, especially if such use is injurious to others who have substantial rights to the waters, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole.'"208 Neb. at 705, 305 N.W.2d at 617 (quoting Olson v. City of Wahoo, 124 Neb. 802, 811, 248 N.W. 304, 308 (1933)).City of Altus, however, is inconsistent with Hudson County. For in the latter case, the Court found Geer v. Connecticut, supra, to be controlling on the Commerce Clause issue. Geer, which sustained a Connecticut ban on the interstate transportation of game birds captured in that State, was premised on the theory that the State owned its wild animals, and therefore was free to qualify any ownership interest it might recognize in the persons who capture them. One such restriction is a prohibition against interstate transfer of the captured animals. This theory of public ownership was advanced as a defense in City of Altus. The State argued that it owned all subterranean water, and therefore could recognize ownership in the surface owner who withdraws the water, but restrict that ownership to use of the water within the State. That theory, upon which the Commerce Clause issue in Hudson County was decided, was rejected by the District Court in City of Altus. [Footnote 12] In expressly Page 458 U. S. 951 overruling Geer three years ago, this Court traced the demise of the public ownership theory and definitively recast it as"'but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.'"Hughes v. Oklahoma, 441 U. S. 322, 441 U. S. 334 (1979) (quoting Toomer v. Witsell, 334 U. S. 385, 334 U. S. 402 (1948)). See also Baldwin v. Montana Fish and Game Comm'n, 436 U. S. 371, 436 U. S. 384-387 (1978); Douglas v. Seacoast Products, Inc., 431 U. S. 265, 431 U. S. 284-285 (1977). In Hughes, the Court found the State's interests insufficient to sustain a ban on the interstate transfer of natural minnows seined from waters within the State.Appellee insists, however, that Nebraska water is distinguishable from other natural resources. The surface owner who withdraws Nebraska groundwater enjoys a lesser ownership interest in the water than the captor of game birds in Connecticut or minnows in Oklahoma or groundwater in Texas, for in Geer, Hughes, and City of Altus, the States permitted intrastate trade in the natural resources once they were captured. Although appellee's greater ownership interest may not be irrelevant to Commerce Clause analysis, it does not absolutely remove Nebraska groundwater from such scrutiny. For appellee's argument is still based on the legal fiction of state ownership. The fiction is illustrated by municipal water supply arrangements pursuant to which groundwater is withdrawn from rural areas and transferred to urban areas. Such arrangements are permitted in Nebraska, see Metropolitan Utilities District v. Merritt Beach Co., 179 Neb. 783, 140 N.W.2d 626 (1966), but the Nebraska Supreme Court distinguished them on the ground that the Page 458 U. S. 952 transferor was only permitted to charge as a price for the water his costs of distribution and not the value of the water itself. 208 Neb. at 708, 305 N.W.2d at 618. Unless demand is greater than supply, however, this reasoning does not distinguish minnows, the price of which presumably is derived from the costs of seining and of transporting the catch to market. Even in cases of shortage, in which the seller of the natural resource can demand a price that exceeds his costs, the State's rate structure that requires the price to be cost-justified is economically comparable to price regulation. A State's power to regulate prices or rates has never been thought to depend on public ownership of the controlled commodity. It would be anomalous if federal power to regulate economic transactions in natural resources depended on the characterization of the payment as compensation for distribution services, on the one hand, or as the price of goods, on the other. Cf. In re Rahrer, 140 U. S. 545, 140 U. S. 558 (1891).The second asserted distinction is that water, unlike other natural resources, is essential for human survival. Appellee, and the amici curiae that are vitally interested in conserving and preserving scarce water resources in the arid Western States, have convincingly demonstrated the desirability of state and local management of groundwater. [Footnote 13] Page 458 U. S. 953 But the States' interests clearly have an interstate dimension. Although water is indeed essential for human survival, studies indicate that over 80% of our water supplies is used for agricultural purposes. [Footnote 14] The agricultural markets supplied by irrigated farms are worldwide. They provide the archtypical example of commerce among the several States for which the Framers of our Constitution intended to authorize federal regulation. The multistate character of the Ogallala aquifer -- underlying appellants' tracts of land in Colorado and Nebraska, as well as parts of Texas, New Mexico, Oklahoma, and Kansas [Footnote 15] -- confirms the view that there is a significant federal interest in conservation, as well as in fair allocation, of this diminishing resource. Cf. Arizona v. California, 373 U. S. 546 (1963).The Western States' interests, and their asserted superior competence, in conserving and preserving scarce water resources are not irrelevant in the Commerce Clause inquiry. Nor is appellee's claim to public ownership without significance. Like Congress' deference to state water law, see infra, at 458 U. S. 958-960, these factors inform the determination whether the burdens on commerce imposed by state groundwater regulation are reasonable or unreasonable. But appellee's claim that Nebraska groundwater is not an article of commerce goes too far: it would not only exempt Nebraska groundwater regulation from burden-on-commerce analysis, it would also curtail the affirmative power of Congress to implement its own policies concerning such regulation. See Philadelphia v. New Jersey, 437 U. S. 617, 437 U. S. 621-623 (1978). If Congress chooses to legislate in this area under its commerce power, its regulation need not be more limited in Nebraska than in Texas and States with similar property laws. Page 458 U. S. 954 Ground water overdraft is a national problem, and Congress has the power to deal with it on that scale.IIOur conclusion that water is an article of commerce raises, but does not answer, the question whether the Nebraska statute is unconstitutional. For the existence of unexercised federal regulatory power does not foreclose state regulation of its water resources, of the uses of water within the State, or indeed, of interstate commerce in water. Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 325 U. S. 766-767 (1945); United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 322 U. S. 548-549 (1944); Cooley v. Board of Wardens, 12 How. 299, 53 U. S. 319 (1852). Determining the validity of state statutes affecting interstate commerce requires a more careful inquiry:"Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will, of course, depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."Pike v. Bruce Church, Inc., 397 U. S. 137, 397 U. S. 142 (1970) (citation omitted).The only purpose that appellee advances for § 46-613.01 is to conserve and preserve diminishing sources of groundwater. The purpose is unquestionably legitimate and highly important, [Footnote 16] and the other aspects of Nebraska's groundwater Page 458 U. S. 955 regulation demonstrate that it is genuine. Appellants' land in Nebraska is located within the boundaries of the Upper Republican Ground Water Control Area, which was designated as such by the Director of the Nebraska Department of Water Resources based upon a determination that there is "[a]n inadequate groundwater supply to meet present or reasonably foreseeable needs for beneficial use of such water supply." Neb.Rev.Stat. § 46-658(1) (Supp.1981); see App. 56-60. Pursuant to § 46-666(1), the Upper Republican Natural Resources District has promulgated special rules and regulations governing groundwater withdrawal and use. See App. 61-82. The rules and regulations define as "critical" those townships in the control area in which the annual decline of the groundwater table exceeds a fixed percentage; appellants' Nebraska tract is located within a critical township. The rules and regulations require the installation of flow meters on every well within the control area, specify the amount of water per acre that may be used for irrigation, and set the spacing that is required between wells. They also strictly limit the intrastate transfer of groundwater: transfers are only permitted between lands controlled by the same groundwater user, and all transfers must be approved by the District Board of Directors. Id. at 68-69.The State's interest in conservation and preservation of groundwater is advanced by the first three conditions in § 46-613.01 for the withdrawal of water for an interstate transfer. Those requirements are"that the withdrawal of the groundwater requested is reasonable, is not contrary to the conservation and use of groundwater, and is not otherwise detrimental to the public welfare."Although Commerce Clause concerns are implicated by the fact that § 46-613.01 applies to interstate transfers but not to intrastate transfers, there are legitimate reasons for the special treatment accorded requests to transport groundwater across state lines. Obviously, a State that imposes severe Page 458 U. S. 956 withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the State. An exemption for interstate transfers would be inconsistent with the ideal of evenhandedness in regulation. At least in the area in which appellants' Nebraska tract is located, the first three standards of § 46-613.01 may well be no more strict in application than the limitations upon intrastate transfers imposed by the Upper Republican Natural Resources District.Moreover, in the absence of a contrary view expressed by Congress, we are reluctant to condemn, as unreasonable, measures taken by a State to conserve and preserve for its own citizens this vital resource in times of severe shortage. Our reluctance stems from the "confluence of [several] realities." Hicklin v. Orbeck, 437 U. S. 518, 437 U. S. 534 (1978). First, a State's power to regulate the use of water in times and places of shortage for the purpose of protecting the health of its citizens -- and not simply the health of its economy -- is at the core of its police power. For Commerce Clause purposes, we have long recognized a difference between economic protectionism, on the one hand, and health and safety regulation, on the other. See H. P. Hood & Sons v. Du Mond, 336 U. S. 525, 336 U. S. 533 (1949). Second, the legal expectation that, under certain circumstances, each State may restrict water within its borders has been fostered over the years not only by our equitable apportionment decrees, see, e.g., Wyoming v. Colorado, 353 U. S. 953 (1957), but also by the negotiation and enforcement of interstate compacts. Our law therefore has recognized the relevance of state boundaries in the allocation of scarce water resources. Third, although appellee's claim to public ownership of Nebraska groundwater cannot justify a total denial of federal regulatory power, it may support a limited preference for its own citizens in the utilization of the resource. See Hicklin v. Orbeck, supra, at 437 U. S. 533-534. In this regard, it is relevant that appellee's claim is logically Page 458 U. S. 957 more substantial than claims to public ownership of other natural resources. See supra at 458 U. S. 950-951. Finally, given appellee's conservation efforts, the continuing availability of groundwater in Nebraska is not simply happenstance; the natural resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage. See Reeves, Inc. v. Stake, 447 U. S. 429 (1980); cf. Philadelphia v. New Jersey, 437 U.S. at 437 U. S. 627-628, and n. 6; Baldwin v. Montana Fish and Game Comm'n, 436 U. S. 371 (1978). A facial examination of the first three conditions set forth in § 46-613.01 does not, therefore, indicate that they impermissibly burden interstate commerce. Appellants, indeed, seem to concede their reasonableness.Appellants, however, do challenge the requirement that"the state in which the water is to be used grants reciprocal rights to withdraw and transport groundwater from that state for use in the State of Nebraska"-- the reciprocity provision that troubled the Chief Justice of the Nebraska Supreme Court. Because Colorado forbids the exportation of its groundwater, [Footnote 17] the reciprocity provision operates as an explicit barrier to commerce between the two States. The State therefore bears the initial burden of demonstrating a close fit between the reciprocity requirement and its asserted local purpose. Hughes v. Oklahoma, 441 U.S. at 441 U. S. 336; Dean Milk Co. v. City of Madison, 340 U. S. 349, 340 U. S. 354 (1951).The reciprocity requirement fails to clear this initial hurdle. For there is no evidence that this restriction is narrowly Page 458 U. S. 958 tailored to the conservation and preservation rationale. Even though the supply of water in a particular well may be abundant, or perhaps even excessive, and even though the most beneficial use of that water might be in another State, such water may not be shipped into a neighboring State that does not permit its water to be used in Nebraska. If it could be shown that the State as a whole suffers a water shortage, that the intrastate transportation of water from areas of abundance to areas of shortage is feasible regardless of distance, and that the importation of water from adjoining States would roughly compensate for any exportation to those States, then the conservation and preservation purpose might be credibly advanced for the reciprocity provision. A demonstrably arid State conceivably might be able to marshal evidence to establish a close means-end relationship between even a total ban on the exportation of water and a purpose to conserve and preserve water. Appellee, however, does not claim that such evidence exists. We therefore are not persuaded that the reciprocity requirement -- when superimposed on the first three restrictions in the statute -- significantly advances the State's legitimate conservation and preservation interest; it surely is not narrowly tailored to serve that purpose. The reciprocity requirement does not survive the "strictest scrutiny" reserved for facially discriminatory legislation. Hughes v. Oklahoma, supra, at 441 U. S. 337. [Footnote 18]IIIAppellee's suggestion that Congress has authorized the States to impose otherwise impermissible burdens on interstate commerce in groundwater is not well founded. The suggestion is based on 37 statutes in which Congress has deferred to state water law, and on a number of interstate compacts dealing with water that have been approved by Congress. Page 458 U. S. 959Abstracts of the relevant sections of the 37 statutes relied upon by appellee were submitted in connection with the Hearings on S. 1275 before the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs, 88th Cong., 2d Sess., 302-310 (1964). Appellee refers the Court to that submission, but only discusses § 8 of the Reclamation Act of 1902, 32 Stat. 390. That section, it turns out, is typical of the other 36 statutes. It contains two parts. The first provides that"nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation."Such language defines the extent of the federal legislation's preemptive effect on state law. New England Power Co. v. New Hampshire, 455 U. S. 331, 455 U. S. 341 (1982); Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 447 U. S. 49 (1980). The second part provides that "the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws." Such language mandates that questions of water rights that arise in relation to a federal project are to be determined in accordance with state law. See California v. United States, 438 U. S. 645 (1978).The interstate compacts to which appellee refers are agreements among States regarding rights to surface water. See The Council of State Governments, Interstate Compacts and Agencies 25-29, 31-32 (1979). Appellee emphasizes a compact between Nebraska and Colorado involving water rights to the South Platte River, see 44 Stat. (part 2) 195, and a compact among Nebraska, Colorado, and Kansas involving water rights to the Republican River, see 57 Stat. 86.Although the 37 statutes and the interstate compacts demonstrate Congress' deference to state water law, [Footnote 19] they do not Page 458 U. S. 960 indicate that Congress wished to remove federal constitutional constraints on such state laws. The negative implications of the Commerce Clause, like the mandates of the Fourteenth Amendment, are ingredients of the valid state law to which Congress has deferred. Neither the fact that Congress has chosen not to create a federal water law to govern water rights involved in federal projects, nor the fact that Congress has been willing to let the States settle their differences over water rights through mutual agreement, [Footnote 20] constitutes persuasive evidence that Congress consented to the unilateral imposition of unreasonable burdens on commerce. In the instances in which we have found such consent, Congress' "intent and policy' to sustain state legislation from attack under the Commerce Clause" was "`expressly stated.'" New England Power Co. v. New Hampshire, supra, at 455 U. S. 343 (quoting Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 328 U. S. 427 (1946)). [Footnote 21] Cf. Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 455 U. S. 155, n. 21 (1982).The reciprocity requirement of Neb.Rev.Stat. § 46-613.01 (1978) violates the Commerce Clause. We leave to the state courts the question whether the invalid portion is severable. The judgment of the Nebraska Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.It is so ordered | U.S. Supreme CourtSporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982)Sporhase v. Nebraska ex rel. DouglasNo. 81-613Argued March 30, 1982Decided July 2, 1982458 U.S. 941SyllabusA Nebraska statute provides that any person who intends to withdraw groundwater from any well located in the State and transport it for use in an adjoining State must obtain a permit from the Nebraska Department of Water Resources. If the Director of Water Resources finds that such withdrawal is reasonable, not contrary to the conservation and use of groundwater, and not otherwise detrimental to the public welfare, he will grant the permit if the State in which the water is to be used grants reciprocal rights to withdraw and transport groundwater from that State for use in Nebraska. Appellants jointly own contiguous tracts of land in Nebraska and Colorado, on which a well on the Nebraska tract pumps groundwater for irrigation of both the Nebraska and Colorado tracts, but they never applied for the permit required by the statute. Appellee brought an action in a Nebraska state court to enjoin appellants from transferring the water across the border without a permit. Rejecting the defense that the statute imposed an undue burden on interstate commerce, the trial court granted the injunction. The Nebraska Supreme Court affirmed.Held:1. Ground water is an article of commerce, and therefore subject to congressional regulation. Pp. 458 U. S. 945-954.(a) Although appellee's claimed greater ownership interest in groundwater than in certain other natural resources may not be irrelevant to Commerce Clause analysis, it does not remove Nebraska groundwater from such scrutiny, since appellee's argument is still based on the legal fiction of state ownership. Pp. 458 U. S. 945-952.(b) The States' interests in conserving and preserving scarce water resources in the arid Western States clearly have an interstate dimension. The agricultural markets supplied by irrigated farms provide the archtypical example of commerce among the States for which the Framers of the Constitution intended to authorize federal regulation. Here, the multistate character of the aquifer underlying appellants' tracts of land, as well as parts of Texas, New Mexico, Oklahoma, and Kansas, demonstrates that there is a significant federal interest in conservation as well as in fair allocation of diminishing water resources. Pp. 458 U. S. 952-954.2. The reciprocity requirement of the Nebraska statute violates the Commerce Clause as imposing an impermissible burden on interstate Page 458 U. S. 942 commerce. While the first three conditions set forth in the statute for granting a permit -- that the withdrawal of the groundwater be reasonable, not contrary to the conservation and use of groundwater, and not otherwise detrimental to the public welfare -- do not, on their faces, impermissibly burden interstate commerce, the reciprocity provision operates as an explicit barrier to commerce between Nebraska and its adjoining States. Nebraska therefore has the initial burden of demonstrating a close fit between the reciprocity requirement and its asserted local purpose. Such requirement, when superimposed on the first three restrictions, fails to clear this initial hurdle, since there is no evidence that it is narrowly tailored to the conservation and preservation rationale. Thus, it does not survive the "strictest scrutiny" reserved for facially discriminatory legislation. Pp. 458 U. S. 954-958.3. Congress has not granted the States permission to engage in groundwater regulation that would otherwise be impermissible. Although there are 37 federal statutes and a number of interstate compacts demonstrating Congress' deference to state water law, they do not indicate that Congress wished to remove federal constitutional restraints on such state law. Neither the fact that Congress has chosen not to create a federal water law to govern water rights involved in federal water projects nor the fact that Congress has been willing to let the States settle their differences over water rights through mutual agreement constitutes persuasive evidence that Congress consented to the unilateral imposition of unreasonable burdens on commerce. Pp. 458 U. S. 959-960.208 Neb. 703, 305 N.W.2d 614, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 458 U. S. 961. Page 458 U. S. 943 |
390 | 1986_85-2099 | CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In 1975, respondent was convicted of second-degree murder by the Court of Common Pleas of Philadelphia County. She was sentenced to life imprisonment. Her appointed trial attorney appealed the conviction to the Supreme Court of Pennsylvania. That court unanimously affirmed the conviction. 477 Pa. 211, 383 A.2d 898 (1978). Having failed on direct appeal, respondent, proceeding pro se, sought relief from the trial court under the Pennsylvania Post Conviction Hearing Act. See 42 Pa.Cons.Stat. § 9541 et seq. (1982). She raised the same issues that the Supreme Court of Pennsylvania had rejected on the merits. The trial court denied relief, but the State Supreme Court reversed, holding that respondent was entitled, under state law, to appointed counsel in her postconviction proceedings. 497 Pa. 332, 440 A.2d 1183 (1981). On remand, the trial court appointed counsel. Counsel reviewed the trial record and consulted with respondent. He concluded that there were no arguable bases for collateral relief. Accordingly, he advised the trial court in writing of his conclusion, and requested permission to withdraw. The trial court conducted an independent review of the record and agreed that there were no issues even arguably meritorious. The court thus dismissed the petition for postconviction relief.Respondent acquired new appointed counsel and pursued an appeal to the Superior Court. Over a dissent, that court concluded that the conduct of the counsel in the trial court's postconviction proceedings violated respondent's constitutional Page 481 U. S. 554 rights. 330 Pa.Super. 313, 479 A.2d 568 (1984). The court held that"Pennsylvania law concerning procedures to be followed when a court-appointed attorney sees no basis for an appeal is derived from the seminal case of"Anders v. California, 386 U. S. 738 (1967). 330 Pa.Super. at 318, 479 A.2d at 570. In Anders, this Court held that, when an attorney appointed to represent an indigent defendant on direct appeal finds a case wholly frivolous:"[H]e should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent, and time allowed him to raise any points that he chooses; the court -- not counsel -- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous."386 U.S. at 386 U. S. 744. The Superior Court held that respondent's postconviction counsel had failed to follow these procedures, and it therefore remanded the case to the Court of Common Pleas for further proceedings. We granted certiorari, 479 U.S. 812 (1986), and we now reverse.We think that the court below improperly relied on the United States Constitution to extend the Anders procedures to postconviction proceedings. The holding in Anders was based on the underlying constitutional right to appointed counsel established in Douglas v. California, 372 U. S. 353 (1963). Relying on "that equality demanded by the Fourteenth Amendment," id. at 372 U. S. 358, the Douglas Court held that denial of counsel to indigents on first appeal as of right amounted to unconstitutional discrimination against the poor. In Anders, the Court held that, in order to protect the "constitutional requirement of substantial equality and fair process" set out in Douglas, appointed appellate counsel must follow the procedures described above when a case appears to be frivolous. 386 U.S. at 386 U. S. 744. Of course, Anders did Page 481 U. S. 555 not set down an independent constitutional command that all lawyers, in all proceedings, must follow these particular procedures. Rather, Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, see Johnson v. Avery, 393 U. S. 483, 393 U. S. 488 (1969), and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals. Wainwright v. Torna, 455 U. S. 586 (1982); Ross v. Moffitt, 417 U. S. 600 (1974). We think that, since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process. See Boyd v. Dutton, 405 U. S. 1, 405 U. S. 7, n. 2 (1972) (POWELL, J., dissenting).In Ross v. Moffitt, supra, we analyzed the defendant's claim to appointed counsel on discretionary review under two theories. We concluded that the fundamental fairness exacted by the Due Process Clause did not require appointment of counsel:"[I]t is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State's prosecutor, but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being 'haled into court' by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal Page 481 U. S. 556 defendant's consent, it is clear that the State need not provide any appeal at all. McKane v. Durston, 153 U. S. 684 (1894). The fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way."417 U.S. at 417 U. S. 610-611. We also concluded that the equal protection guarantee of the Fourteenth Amendment does not require the appointment of an attorney for an indigent appellant just because an affluent defendant may retain one."The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process."Id. at 417 U. S. 616.These considerations apply with even more force to postconviction review. First, we reject respondent's argument that the Anders procedures should be applied to a state-created right to counsel on postconviction review just because they are applied to the right to counsel on first appeal that this Court established in Douglas. Respondent apparently believes that a "right to counsel" can have only one meaning, no matter what the source of that right. But the fact that the defendant has been afforded assistance of counsel in some form does not end the inquiry for federal constitutional purposes. Rather, it is the source of that right to a lawyer's assistance, combined with the nature of the proceedings, that controls the constitutional question. In this case, respondent's access to a lawyer is the result of the State's decision, not the command of the United States Constitution.We think that the analysis that we followed in Ross forecloses respondent's constitutional claim. The procedures followed by respondent's habeas counsel fully comported with fundamental fairness. Postconviction relief is even further removed from the criminal trial than is discretionary direct Page 481 U. S. 557 review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. See Fay v. Noia, 372 U. S. 391, 372 U. S. 423-424 (1963). It is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief, cf. United States v. MacCollom, 426 U. S. 317, 426 U. S. 323 (1976) (plurality opinion), and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.Nor was the equal protection guarantee of "meaningful access" violated in this case. By the time respondent presented her application for postconviction relief, she had been represented at trial and in the Supreme Court of Pennsylvania. In Ross, we concluded that the defendant's access to the trial record and the appellate briefs and opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review. 417 U.S. at 417 U. S. 614-615. We think that the same conclusion necessarily obtains with respect to postconviction review. Since respondent has no underlying constitutional right to appointed counsel in state postconviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.Respondent relies on Evitts v. Lucey, 469 U. S. 387, 469 U. S. 401 (1985), for the proposition that, even though the State need not grant a prisoner access to counsel on postconviction review, once it has done so, the Due Process Clause of the Fourteenth Amendment requires that counsel's actions comport with the procedures enumerated in Anders. In Evitts, the Court held that a State cannot penalize a criminal defendant by dismissing his first appeal as of right when his appointed counsel has failed to follow mandatory appellate rules. In so ruling, the Court rejected the State's argument that, since it need not provide an appeal in the first place, see Page 481 U. S. 558 McKane v. Durston, 153 U. S. 684 (1894), it could cut off a defendant's appeal without running afoul of the Due Process Clause. Noting that"[t]he right to appeal would be unique among state actions if it could be withdrawn without consideration of applicable due process Clause,"469 U.S. at 481 U. S. 400-401, the Court reasoned that,"when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution -- and, in particular, in accord with the Due Process Clause,"id. at 469 U. S. 401. Respondent argues that, by allowing counsel to represent her without complying with Anders, the Court of Common Pleas improperly deprived her of her state law right to "effective" assistance.We think that Evitts provides respondent no comfort. Initially, the substantive holding of Evitts -- that the State may not cut off a right to appeal because of a lawyer's ineffectiveness -- depends on a constitutional right to appointed counsel that does not exist in state habeas proceedings. More important, however, is the fact that, unlike the prisoner in Evitts, who was actually deprived of a state-created right to appeal, respondent here has suffered no deprivation, assuming for the moment that the Due Process Clause is relevant. Cf. Wainright v. Torna, 455 U.S. at 455 U. S. 588, n. 4 (per curiam); Polk County v. Dodson, 454 U. S. 312 (1981). The Court of Common Pleas found that respondent's right to counsel under Pennsylvania law was satisfied by the conduct of her appointed counsel, combined with the court's independent review of the record. The Superior Court did not disagree with this state law holding. Rather, it ruled that Anders required even more assistance, as a matter of federal constitutional law. We have rejected that conclusion, and therefore the State's obligations, as a matter of both federal and state law, have been fulfilled. Since respondent has received exactly that which she is entitled to receive under state law -- an independent review of the record by competent counsel -- she cannot claim any deprivation without due process. Page 481 U. S. 559At bottom, the decision below rests on a premise that we are unwilling to accept -- that, when a State chooses to offer help to those seeking relief from convictions, the Federal Constitution dictates the exact form such assistance must assume. On the contrary, in this area, States have substantial discretion to develop and implement programs to aid prisoners seeking to secure postconviction review. In Pennsylvania, the State has made a valid choice to give prisoners the assistance of counsel without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position -- at trial and on first appeal as of right. In this context, the Constitution does not put the State to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines annunciated in Anders. The judgment of the Superior Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.It is so ordered | U.S. Supreme CourtPennsylvania v. Finley, 481 U.S. 551 (1987)Pennsylvania v. FinleyNo. 85-2099Argued March 2, 1987Decided May 18, 1987481 U.S. 551SyllabusRespondent was convicted of second-degree murder and sentenced to life imprisonment in a Pennsylvania trial court, and the Pennsylvania Supreme Court affirmed on direct appeal. In respondent's subsequent postconviction proceedings, the trial court, as required by state law, appointed counsel to assist her. Counsel reviewed the trial record; consulted with respondent; concluded that there were no arguable bases for collateral review; advised the trial court in writing of his conclusion; and requested permission to withdraw. After reviewing the record, the court agreed that there were no arguably meritorious issues and dismissed the proceedings. Respondent acquired new appointed counsel and appealed to the Pennsylvania Superior Court, which concluded that counsel's conduct in the trial court violated respondent's constitutional rights, and remanded the case for further proceedings. The Superior Court relied on Anders v. California, 386 U. S. 738, which held that (1) when an attorney appointed to represent an indigent defendant on direct appeal finds the case to be wholly frivolous, he must request the court's permission to withdraw and submit a brief referring to anything in the record arguably supporting the appeal, (2) a copy of the brief must be furnished the indigent, and time must be allowed for him to raise any points that he chooses, and (3) the court itself must then decide whether the case is wholly frivolous.Held: The court below improperly relied on the Federal Constitution to extend the Anders procedures to these collateral postconviction proceedings. Denial of counsel to indigents on first appeal as of right amounts to discrimination against the poor in violation of the Fourteenth Amendment, and Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established Constitutional right to counsel. The right to appointed counsel extends to only the first appeal of right, and, since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, Ross v. Moffitt, 417 U. S. 600, a fortiorari, he has no such right when attacking, in postconviction proceedings, a conviction that has become final upon exhaustion of the appellate process. The Anders procedures do not apply to a state-created right to counsel on postconviction review just because they are applied to the right to counsel on first appeal as of right. Respondent's access to a lawyer was the Page 481 U. S. 552 result of the State's decision, not the command of the Federal Constitution. The procedures followed by her trial counsel in the postconviction proceedings fully comported with the fundamental fairness mandated by the Due Process Clause. States have no obligation to provide postconviction relief, and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well. Nor was the equal protection guarantee of meaningful access violated in this case. Moreover, there is no merit to respondent's contention that, once the State has granted a prisoner access to counsel on postconviction review, the Due Process Clause of the Fourteenth Amendment requires that counsel's actions comport with the Anders procedures. Evitts v. Lucey, 469 U. S. 387, distinguished. Pennsylvania made a valid choice to give prisoners the assistance of counsel in postconviction proceedings without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position -- at trial and on first appeal as of right. Pp. 481 U. S. 554-559.330 Pa.Super. 313, 479 A.2d 568, reversed and remanded.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, POWELL, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 481 U. S. 559. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 481 U. S. 559. STEVENS, J., filed a dissenting opinion, post, p. 481 U. S. 570. Page 481 U. S. 553 |
391 | 1988_88-605 | CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, and an opinion with respect Page 492 U. S. 499 to Parts II-D and III, in which JUSTICE WHITE and JUSTICE KENNEDY join.This appeal concerns the constitutionality of a Missouri statute regulating the performance of abortions. The United States Court of Appeals for the Eighth Circuit struck down several provisions of the statute on the ground that they violated this Court's decision in Roe v. Wade, 410 U. S. 113 (1973), and cases following it. We noted probable jurisdiction, 488 U.S. 1003 (1989), and now reverse. Page 492 U. S. 500IIn June, 1986, the Governor of Missouri signed into law Missouri Senate Committee Substitute for House Bill No. 1596 (hereinafter Act or statute), which amended existing state law concerning unborn children and abortions. [Footnote 1] Page 492 U. S. 501 The Act consisted of 20 provisions, 5 of which are now before the Court. The first provision, or preamble, contains "findings" by the state legislature that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and wellbeing." Mo.Rev.Stat. §§ 1.205.1(1), (2) (1986). The Act further requires that all Missouri laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court's precedents. § 1.205.2. Among its other provisions, the Act requires that, prior to performing an abortion on any woman whom a physician has reason to believe is 20 or more weeks pregnant, the physician ascertain whether the fetus is viable by performing"such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child."§ 188. 029. The Act also prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life, and it prohibits the use of public funds, employees, or facilities for the purpose of "encouraging or counseling" a woman to have an abortion not necessary to save her life. §§ 188.205, 188.210, 188.215.In July, 1986, five health professionals employed by the State and two nonprofit corporations brought this class action in the United States District Court for the Western District of Missouri to challenge the constitutionality of the Missouri statute. Plaintiffs, appellees in this Court, sought declaratory and injunctive relief on the ground that certain statutory provisions violated the First, Fourth, Ninth, and Fourteenth Amendments to the Federal Constitution. App. A9. They asserted violations of various rights, including the "privacy Page 492 U. S. 502 rights of pregnant women seeking abortions"; the "woman's right to an abortion"; the "righ[t] to privacy in the physician-patient relationship"; the physician's "righ[t] to practice medicine"; the pregnant woman's "right to life due to inherent risks involved in childbirth"; and the woman's right to "receive . . . adequate medical advice and treatment" concerning abortions. Id. at A17-A19.Plaintiffs filed this suit"on their own behalf and on behalf of the entire class consisting of facilities and Missouri licensed physicians or other health care professionals offering abortion services or pregnancy counseling and on behalf of the entire class of pregnant females seeking abortion services or pregnancy counseling within the State of Missouri."Id. at A13. The two nonprofit corporations are Reproductive Health Services, which offers family planning and gynecological services to the public, including abortion services up to 22 weeks "gestational age," [Footnote 2] and Planned Parenthood of Kansas City, which provides abortion services up to 14 weeks gestational age. Id. at A9-A10. The individual plaintiffs are three physicians, one nurse, and a social worker. All are "public employees" at "public facilities" in Missouri, and they are paid for their services with "public funds," as those terms are defined by § 188.200. The individual plaintiffs, within the scope of their public employment, encourage and counsel pregnant women to have nontherapeutic abortions. To of the physicians perform abortions. App. A54-A55.Several weeks after the complaint was filed, the District Court temporarily restrained enforcement of several provisions of the Act. Following a 3-day trial in December, 1986, the District Court declared seven provisions of the Act unconstitutional and enjoined their enforcement. 662 F. Supp. 407 (WD Mo.1987). These provisions included the preamble, § 1.205; the "informed consent" provision, which required Page 492 U. S. 503 physicians to inform the pregnant woman of certain facts before performing an abortion, § 188.039; the requirement that post-16-week abortions be performed only in hospitals, § 188.025; the mandated tests to determine viability, § 188.029; and the prohibition on the use of public funds, employees, and facilities to perform or assist nontherapeutic abortions, and the restrictions on the use of public funds, employees, and facilities to encourage or counsel women to have such abortions, §§ 188.205, 188.210, 188.215. Id. at 430.The Court of Appeals for the Eighth Circuit affirmed, with one exception not relevant to this appeal. 851 F.2d 1071 (1988). The Court of Appeals determined that Missouri's declaration that life begins at conception was "simply an impermissible state adoption of a theory of when life begins to justify its abortion regulations." Id. at 1076. Relying on Colautti v. Franklin, 439 U. S. 379, 439 U. S. 388-389 (1979), it further held that the requirement that physicians perform viability tests was an unconstitutional legislative intrusion on a matter of medical skill and judgment. 851 F.2d at 1074-1075. The Court of Appeals invalidated Missouri's prohibition on the use of public facilities and employees to perform or assist abortions not necessary to save the mother's life. Id. at 1081-1083. It distinguished our decisions in Harris v. McRae, 448 U. S. 297 (1980), and Maher v. Roe, 432 U. S. 464 (1977), on the ground that"'[t]here is a fundamental difference between providing direct funding to effect the abortion decision and allowing staff physicians to perform abortions at an existing publicly owned hospital.'"851 F.2d at 1081, quoting Nyberg v. City of Virginia, 667 F.2d 754, 758 (CA8 1982), appeal dism'd, 462 U.S. 1125 (1983). The Court of Appeals struck down the provision prohibiting the use of public funds for "encouraging or counseling" women to have nontherapeutic abortions, for the reason that this provision was both overly vague and inconsistent with the right to an abortion enunciated in Roe v. Wade. 851 F.2d at 1077-1080. The court also invalidated the hospitalization Page 492 U. S. 504 requirement for 16-week abortions, id. at 1073-1074, and the prohibition on the use of public employees and facilities for abortion counseling, id. at 1077-1080, but the State has not appealed those parts of the judgment below. See Juris. Statement I-II. [Footnote 3]IIDecision of this case requires us to address four sections of the Missouri Act: (a) the preamble; (b) the prohibition on the use of public facilities or employees to perform abortions; (c) the prohibition on public funding of abortion counseling; and (d) the requirement that physicians conduct viability tests prior to performing abortions. We address these seriatim.AThe Act's preamble, as noted, sets forth "findings" by the Missouri legislature that "[t]he life of each human being begins at conception," and that "[u]nborn children have protectable interests in life, health, and wellbeing." Mo.Rev.Stat. §§ 1.205.1(1), (2) (1986). The Act then mandates that state laws be interpreted to provide unborn children with "all the rights, privileges, and immunities available to other persons, citizens, and residents of this state," subject to the Constitution and this Court's precedents. § 1.205.2. [Footnote 4] In invalidating Page 492 U. S. 505 the preamble, the Court of Appeals relied on this Court's dictum that "a State may not adopt one theory of when life begins to justify its regulation of abortions.'" 851 F.2d at 1075-1076, quoting Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 462 U. S. 444 (1983), in turn citing Roe v. Wade, 410 U.S. at 410 U. S. 159-162. It rejected Missouri's claim that the preamble was "abortion-neutral," and "merely determine[d] when life begins in a nonabortion context, a traditional state prerogative." 851 F.2d at 1076. The court thought that "[t]he only plausible inference" from the fact that "every remaining section of the bill save one regulates the performance of abortions" was that "the state intended its abortion regulations to be understood against the backdrop of its theory of life." Ibid. [Footnote 5]The State contends that the preamble itself is precatory, and imposes no substantive restrictions on abortions, and that appellees therefore do not have standing to challenge it. Brief for Appellants 21-24. Appellees, on the other hand, insist that the preamble is an operative part of the Act intended to guide the interpretation of other provisions of the Act. Brief for Appellees 19-23. They maintain, for example, that the preamble's definition of life may prevent physicians Page 492 U. S. 506 in public hospitals from dispensing certain forms of contraceptives, such as the intrauterine device. Id. at 22.In our view, the Court of Appeals misconceived the meaning of the Akron dictum, which was only that a State could not "justify" an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. Certainly the preamble does not, by its terms, regulate abortion or any other aspect of appellees' medical practice. The Court has emphasized that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Maher v. Roe, 432 U.S. at 432 U. S. 474. The preamble can be read simply to express that sort of value judgment.We think the extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the courts of Missouri can definitively decide. State law has offered protections to unborn children in tort and probate law, see Roe v. Wade, supra, at 410 U. S. 161-162, and § 1.205.2 can be interpreted to do no more than that. What we have, then, is much the same situation that the Court confronted in Alabama State Federation of Labor v. McAdory, 325 U. S. 450 (1945). As in that case:"We are thus invited to pass upon the constitutional validity of a state statute which has not yet been applied or threatened to be applied by the state courts to petitioners or others in the manner anticipated. Lacking any authoritative construction of the statute by the state courts, without which no constitutional question arises, and lacking the authority to give such a controlling construction ourselves, and with a record which presents no concrete set of facts to which the statute is to be applied, the case is plainly not one to be disposed of by the declaratory judgment procedure."Id. at 325 U. S. 460. It will be time enough for federal courts to address the meaning of the preamble should it be applied to restrict the activities of appellees in some concrete way. Until then, this Page 492 U. S. 507 Court"is not empowered to decide . . . abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result a to the thing in issue in the case before it."Tyler v. Judges of Court of Registration, 179 U. S. 405, 179 U. S. 409 (1900). See also Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 454 U. S. 473 (1982). [Footnote 6] We therefore need not pass on the constitutionality of the Act's preamble.BSection 188.210 provides that"[i]t shall be unlawful for any public employee within the scope of his employment to perform or assist an abortion, not necessary to save the life of the mother,"while § 188.215 makes it"unlawful for any public facility to be used for the purpose of performing or assisting an abortion not necessary to save the life of the mother. [Footnote 7]"The Court of Appeals held that these provisions contravened this Court's abortion decisions. 851 F.2d at 1082-1083. We take the contrary view.As we said earlier this Term in DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 489 U. S. 196 (1989):"[O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual."In Maher v. Roe, supra, the Court upheld a Connecticut welfare regulation under which Medicaid recipients received payments for medical services related Page 492 U. S. 508 to childbirth, but not for nontherapeutic abortions. The Court rejected the claim that this unequal subsidization of childbirth and abortion was impermissible under Roe v. Wade. As the Court put it:"The Connecticut regulation before us is different in kind from the laws invalidated in our previous abortion decisions. The Connecticut regulation places no obstacles -- absolute or otherwise -- in the pregnant woman's path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut's decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult -- and in some cases, perhaps, impossible -- for some women to have abortions is neither created nor in any way affected by the Connecticut regulation."432 U.S. at 432 U. S. 474. Relying on Maher, the Court in Poelker v. Doe, 432 U. S. 519, 432 U. S. 521 (1977), held that the city of St. Louis committed"no constitutional violation . . . in electing, as a policy choice, to provide publicly financed hospital services for childbirth without providing corresponding services for nontherapeutic abortions."More recently, in Harris v. McRae, 448 U. S. 297 (1980), the Court upheld "the most restrictive version of the Hyde Amendment," id. at 448 U. S. 325, n. 27, which withheld from States federal funds under the Medicaid program to reimburse the costs of abortions, "except where the life of the mother would be endangered if the fetus were carried to term.'" Ibid. (quoting Pub.L. 94-439, § 209, 90 Stat. 1434). As in Maher and Poelker, the Court required only a showing that Congress' authorization of "reimbursement for medically necessary services generally, but not for certain medically necessary Page 492 U. S. 509 abortions" was rationally related to the legitimate governmental goal of encouraging childbirth. 448 U.S. at 448 U. S. 325.The Court of Appeals distinguished these cases on the ground that"[t]o prevent access to a public facility does more than demonstrate a political choice in favor of childbirth; it clearly narrows, and in some cases forecloses, the availability of abortion to women."851 F.2d at 1081. The court reasoned that the ban on the use of public facilities"could prevent a woman's chosen doctor from performing an abortion because of his unprivileged status at other hospitals or because a private hospital adopted a similar anti-abortion stance."Ibid. It also thought that "[s]uch a rule could increase the cost of obtaining an abortion and delay the timing of it as well." Ibid.We think that this analysis is much like that which we rejected in Maher, Poelker, and McRae. As in those cases, the State's decision here to use public facilities and staff to encourage childbirth over abortion "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy." McRae, 448 U.S. at 448 U. S. 315. Just as Congress' refusal to fund abortions in McRae left"an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all,"id. at 448 U. S. 317, Missouri's refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all. The challenged provisions only restrict a woman's ability to obtain an abortion to the extent that she chooses to use a physician affiliated with a public hospital. This circumstance is more easily remedied, and thus considerably less burdensome, than indigency, which "may make it difficult -- and in some cases, perhaps, impossible -- for some women to have abortions" without public funding. Maher, 432 U.S. at 432 U. S. 474. Having held that the State's refusal to fund abortions does not violate Roe v. Wade, it strains logic to reach a contrary result for the use Page 492 U. S. 510 of public facilities and employees. If the State may "make a value judgment favoring childbirth over abortion and . . . implement that judgment by the allocation of public funds," Maher, supra, at 432 U. S. 474, surely it may do so through the allocation of other public resources, such as hospitals and medical staff.The Court of Appeals sought to distinguish our cases on the additional ground that "[t]he evidence here showed that all of the public facility's costs in providing abortion services are recouped when the patient pays." 851 F.2d at 1083. Absent any expenditure of public funds, the court thought that Missouri was "expressing" more than "its preference for childbirth over abortions," but rather was creating an "obstacle to exercise of the right to choose an abortion [that could not] stand absent a compelling state interest." Ibid. We disagree."Constitutional concerns are greatest," we said in Maher, supra, at 432 U. S. 476,"when the State attempts to impose its will by the force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader."Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions. Brief for Appellees 46-47. Indeed, if the State does recoup all of its costs in performing abortions, and no state subsidy, direct or indirect, is available, it is difficult to see how any procreational choice is burdened by the State's ban on the use of its facilities or employees for performing abortions. [Footnote 8] Page 492 U. S. 511Maher, Poelker, and McRae all support the view that the State need not commit any resources to facilitating abortions, even if it can turn a profit by doing so. In Poelker, the suit was filed by an indigent who could not afford to pay for an abortion, but the ban on the performance of nontherapeutic abortions in city-owned hospitals applied whether or not the pregnant woman could pay. 432 U.S. at 432 U. S. 520; id. at 432 U. S. 524 (BRENNAN, J., dissenting). [Footnote 9] The Court emphasized that the mayor's decision to prohibit abortions in city hospitals was "subject to public debate and approval or disapproval at the polls," and that"the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth, as St. Louis has done."Id. at 432 U. S. 521. Thus we uphold the Act's restrictions on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions.CThe Missouri Act contains three provisions relating to "encouraging or counseling a woman to have an abortion not necessary to save her life." Section 188.205 states that no public funds can be used for this purpose; § 188.210 states that public employees cannot, within the scope of their employment, engage in such speech; and § 188.215 forbids such speech in public facilities. The Court of Appeals did not consider § 188.205 separately from §§ 188.210 and 188.215. It held that all three of these provisions were unconstitutionally vague, and that"the ban on using public funds, employees, and facilities to encourage or counsel a woman to have an abortion is an unacceptable infringement of the woman's fourteenth amendment right to choose an abortion after receiving Page 492 U. S. 512 the medical information necessary to exercise the right knowingly and intelligently."851 F.2d at 1079. [Footnote 10]Missouri has chosen only to appeal the Court of Appeals' invalidation of the public funding provision, § 188.205. See Juris. Statement I-II. A threshold question is whether this provision reaches primary conduct, or whether it is simply an instruction to the State's fiscal officers not to allocate funds for abortion counseling. We accept, for purposes of decision, the State's claim that § 188.205 "is not directed at the conduct of any physician or health care provider, private or public," but "is directed solely at those persons responsible for expending public funds." Brief for Appellants 43. [Footnote 11]Appellees contend that they are not "adversely" affected under the State's interpretation of § 188.205, and therefore that there is no longer a case or controversy before us on this question. Brief for Appellees 31-32. Plaintiffs are masters of their complaints, and remain so at the appellate stage of a litigation. See Caterpillar Inc. v. Williams, 482 U. S. 386, 482 U. S. 398-399 (1987). A majority of the Court agrees with appellees that the controversy over § 188.205 is now moot, because appellees' argument amounts to a decision to no longer seek a declaratory judgment that § 188.205 is unconstitutional and accompanying declarative relief. See Deakins v. Monaghan, 484 U. S. 193, 484 U. S. 199-201 (1988); United States v. Munsingwear, Inc., 340 U. S. 36, 340 U. S. 39-40 (1950). We accordingly direct the Court of Appeals to vacate the judgment of the District Court Page 492 U. S. 513 with instructions to dismiss the relevant part of the complaint. Deakins, 484 U.S. at 484 U. S. 200."Because this [dispute] was rendered moot in part by [appellees'] willingness permanently to withdraw their equitable claims from their federal action, a dismissal with prejudice is indicated."Ibid.DSection 188.029 of the Missouri Act provides:"Before a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks gestational age, the physician shall first determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions. In making this determination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child and shall enter such findings and determination of viability in the medical record of the mother. [Footnote 12]"As with the preamble, the parties disagree over the meaning of this statutory provision. The State emphasizes the language of the first sentence, which speaks in terms of the physician's determination of viability being made by the standards of ordinary skill in the medical profession. Brief for Appellants 32-35. Appellees stress the language of the second sentence, which prescribes such "tests as are necessary" to make a finding of gestational age, fetal weight, and lung maturity. Brief for Appellees 26-30. Page 492 U. S. 514The Court of Appeals read § 188.029 as requiring that, after 20 weeks, "doctors must perform tests to find gestational age, fetal weight and lung maturity." 851 F.2d at 1075, n. 5. The court indicated that the tests needed to determine fetal weight at 20 weeks are "unreliable and inaccurate," and would add $125 to $250 to the cost of an abortion. Ibid. It also stated that"amniocentesis, the only method available to determine lung maturity, is contrary to accepted medical practice until 28-30 weeks of gestation, expensive, and imposes significant health risks for both the pregnant woman and the fetus."Ibid.We must first determine the meaning of § 188.029 under Missouri law. Our usual practice is to defer to the lower court's construction of a state statute, but we believe the Court of Appeals has "fallen into plain error" in this case. Frisby v. Schultz, 487 U. S. 474, 487 U. S. 483 (1988); see Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 472 U. S. 500, n. 9 (1985)."'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, 421 U. S. 713 (1975), quoting United States v. Heirs of Boisdore, 8 How. 113, 49 U. S. 122 (1849). See Chemehuevi Tribe of Indians v. FPC, 420 U. S. 395, 420 U. S. 402-403 (1975); Kokoszka v. Belford, 417 U. S. 642, 417 U. S. 650 (1974). The Court of Appeals' interpretation also runs "afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties." Frisby, supra, at 487 U. S. 483.We think the viability testing provision makes sense only if the second sentence is read to require only those tests that are useful to making subsidiary findings as to viability. If we construe this provision to require a physician to perform those tests needed to make the three specified findings in all circumstances, including when the physician's reasonable professional judgment indicates that the tests would be irrelevant to determining viability or even dangerous to the mother and the fetus, the second sentence of § 188.029 would Page 492 U. S. 515 conflict with the first sentence's requirement that a physician apply his reasonable professional skill and judgment. It would also be incongruous to read this provision, especially the word "necessary," [Footnote 13] to require the performance of tests irrelevant to the expressed statutory purpose of determining viability. It thus seems clear to us that the Court of Appeals' construction of § 188.029 violates well-accepted canons of statutory interpretation used in the Missouri courts, see State ex rel. Stern Brothers & Co. v. Stilley, 337 S.W.2d 934, 939 (Mo.1960) ("The basic rule of statutory construction is to first seek the legislative intention, and to effectuate it if possible, and the law favors constructions which harmonize with reason, and which tend to avoid unjust, absurd, unreasonable or confiscatory results, or oppression"); Bell v. Mid-Century Ins. Co., 750 S.W.2d 708, 710 (Mo.App.1988) ("Interpreting the phrase literally would produce an absurd result, which the Legislature is strongly presumed not to have intended"), which JUSTICE BLACKMUN ignores. Post at 492 U. S. 545-546.The viability testing provision of the Missouri Act is concerned with promoting the State's interest in potential human life, rather than in maternal health. Section 188.029 creates what is essentially a presumption of viability at 20 weeks, which the physician must rebut with tests indicating that the fetus is not viable prior to performing an abortion. It also directs the physician's determination as to viability by specifying consideration, if feasible, of gestational age, fetal weight, and lung capacity. The District Court found that "the medical evidence is uncontradicted that a 20-week fetus is not viable," and that "23 1/2 to 24 weeks gestation is the earliest point in pregnancy where a reasonable possibility of viability Page 492 U. S. 516 exists." 662 F. Supp. at 420. But it also found that there may be a 4-week error in estimating gestational age, id. at 421, which supports testing at 20 weeks.In Roe v. Wade, the Court recognized that the State has "important and legitimate" interests in protecting maternal health and in the potentiality of human life. 410 U.S. at 410 U. S. 162. During the second trimester, the State "may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Id. at 410 U. S. 164. After viability, when the State's interest in potential human life was held to become compelling, the State"may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."Id. at 165. [Footnote 14]In Colautti v. Franklin, 439 U. S. 379 (1979), upon which appellees rely, the Court held that a Pennsylvania statute regulating the standard of care to be used by a physician performing an abortion of a possibly viable fetus was void for vagueness. Id. at 439 U. S. 390-401. But in the course of reaching that conclusion, the Court reaffirmed its earlier statement in Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 428 U. S. 64 (1976), that"'the determination of whether a particular Page 492 U. S. 517 fetus is viable is, and must be, a matter for the judgment of the responsible attending physician.'"439 U.S. at 439 U. S. 396. JUSTICE BLACKMUN, post at 492 U. S. 545, n. 6, ignores he statement in Colautti that"neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability -- be it weeks of gestation or fetal weight or any other single factor -- as the determinant of when the State has a compelling interest in the life or health of the fetus."439 U.S. at 439 U. S. 388-389. To the extent that § 188.029 regulates the method for determining viability, it undoubtedly does superimpose state regulation on the medical determination whether a particular fetus is viable. The Court of Appeals and the District Court thought it unconstitutional for this reason. 851 F.2d at 1074-1075; 662 F. Supp. at 423. To the extent that the viability tests increase the cost of what are in fact second-trimester abortions, their validity may also be questioned under Akron, 462 U.S. at 462 U. S. 434-435, where the Court held that a requirement that second-trimester abortions must be performed in hospitals was invalid because it substantially increased the expense of those procedures.We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed. Statutes specifying elements of informed consent to be provided abortion patients, for example, were invalidated if they were thought to "structur[e] . . . the dialogue between the woman and her physician." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 476 U. S. 763 (1986). As the dissenters in Thornburgh pointed out, such a statute would have been sustained under any traditional standard of judicial review, id. at 476 U. S. 802 (WHITE, J., dissenting), or for any other surgical procedure except abortion. Id. at 476 U. S. 783 (Burger, C.J., dissenting). Page 492 U. S. 518Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitutional amendments, this Court is the only body able to make needed changes. See United States v. Scott, 437 U. S. 82, 437 U. S. 101 (1978). We have not refrained from reconsideration of a prior construction of the Constitution that has proved "unsound in principle and unworkable in practice." Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 546 (1985); see Solorio v. United States, 483 U. S. 435, 483 U. S. 448-450 (1987); Erie R. Co. v. Tompkins, 304 U. S. 64, 304 U. S. 74-78 (1938). We think the Roe trimester framework falls into that category.In the first place, the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. The key elements of the Roe framework -- trimesters and viability -- are not found in the text of the Constitution, or in any place else one would expect to find a constitutional principle. Since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. [Footnote 15] AS JUSTICE WHITE has put it, the trimester framework Page 492 U. S. 519 has left this Court to serve as the country's "ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States." Planned Parenthood of Central Mo. v. Danforth, 428 U.S. at 428 U. S. 99 (opinion concurring in part and dissenting in part). Cf. Garcia, supra, at 469 U. S. 547.In the second place, we do not see why the State's interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. The dissenters in Thornburgh, writing in the context of the Roe trimester analysis, would have recognized this fact by positing against the "fundamental right" recognized in Roe the State's "compelling interest" in protecting potential human life throughout pregnancy. "[T]he State's interest, if compelling after viability, is equally compelling before viability." Thornburgh, 476 U.S. at 476 U. S. 795 (WHITE, J., dissenting); see id. at 476 U. S. 828 (O'CONNOR, J., dissenting) ("State has compelling interests in ensuring maternal health and in protecting potential human life, and these interests exist throughout pregnancy'") (citation omitted).The tests that § 188.029 requires the physician to perform are designed to determine viability. The State here has chosen viability as the point at which its interest in potential human life must be safeguarded. See Mo.Rev.Stat. § 188.030 (1986) ("No abortion of a viable unborn child shall be performed unless necessary to preserve the life or health of the woman"). It is true that the tests in question increase the expense of abortion, and regulate the discretion of the physician in determining the viability of the fetus. Since the tests will undoubtedly show in many cases that the fetus is not viable, the tests will have been performed for what were, in fact, second-trimester abortions. But we are satisfied that the requirement of these tests permissibly furthers Page 492 U. S. 520 the State's interest in protecting potential human life, and we therefore believe § 188.029 to be constitutional.JUSTICE BLACKMUN takes us to task for our failure to join in a "great issues" debate as to whether the Constitution includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, 381 U. S. 479 (1965), and Roe. But Griswold v. Connecticut, unlike Roe, did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. As such, it was far different from the opinion, if not the holding, of Roe v. Wade, which sought to establish a constitutional framework for judging state regulation of abortion during the entire term of pregnancy. That framework sought to deal with areas of medical practice traditionally subject to state regulation, and it sought to balance once and for all by reference only to the calendar the claims of the State to protect the fetus as a form of human life against the claims of a woman to decide for herself whether or not to abort a fetus she was carrying. The experience of the Court in applying Roe v. Wade in later cases, see supra at 492 U. S. 518, n. 15, suggests to us that there is wisdom in not unnecessarily attempting to elaborate the abstract differences between a "fundamental right" to abortion, as the Court described it in Akron, 462 U.S. at 462 U. S. 420, n. 1, a "limited fundamental constitutional right," which JUSTICE BLACKMUN today treats Roe as having established, post at 492 U. S. 555, or a liberty interest protected by the Due Process Clause, which we believe it to be. The Missouri testing requirement here is reasonably designed to ensure that abortions are not performed where the fetus is viable -- an end which all concede is legitimate -- and that is sufficient to sustain its constitutionality.JUSTICE BLACKMUN also accuses us, inter alia, of cowardice and illegitimacy in dealing with "the most politically divisive domestic legal issue of our time." Post at 492 U. S. 559. There is Page 492 U. S. 521 no doubt that our holding today will allow some governmental regulation of abortion that would have been prohibited under the language of cases such as Colautti v. Franklin, 439 U. S. 379 (1979), and Akron v. Akron Center for Reproductive Health, Inc., supra. But the goal of constitutional adjudication is surely not to remove inexorably "politically divisive" issues from the ambit of the legislative process, whereby the people through their elected representatives deal with matters of concern to them. The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. We think we have done that today. JUSTICE BLACKMUN's suggestion, post at 492 U. S. 538, 492 U. S. 557-558, that legislative bodies, in a Nation where more than half of our population is women, will treat our decision today as an invitation to enact abortion regulation reminiscent of the dark ages not only misreads our views but does scant justice to those who serve in such bodies and the people who elect them.IIIBoth appellants and the United States as Amicus Curiae have urged that we overrule our decision in Roe v. Wade. Brief for Appellants 12-18; Brief for United States as Amicus Curiae 8-24. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake. 410 U.S. at 410 U. S. 117-118. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, id. at 410 U. S. 164, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases. Page 492 U. S. 522Because none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution, the judgment of the Court of Appeals isReversed | U.S. Supreme CourtWebster v. Reproductive Health Svcs., 492 U.S. 490 (1989)Webster v. Reproductive Health ServicesNo. 88-605Argued April 26, 1989Decided July 3, 1989492 U.S. 490SyllabusAppellees, state-employed health professionals and private nonprofit corporations providing abortion services, brought suit in the District Court for declaratory and injunctive relief challenging the constitutionality of a Missouri statute regulating the performance of abortions. The statute, inter alia: (1) sets forth "findings" in its preamble that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and wellbeing," §§ 1.205.1(1), (2), and requires that all state laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court's precedents, § 1.205.2; (2) specifies that a physician, prior to performing an abortion on any woman whom he has reason to believe is 20 or more weeks pregnant, must ascertain whether the fetus is "viable" by performing "such medical examinations and tests as are necessary to make a finding of [the fetus'] gestational age, weight, and lung maturity," § 188.029; (3) prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life, §§ 188.210, 188.215; and (4) makes it unlawful to use public funds, employees, or facilities for the purpose of "encouraging or counseling" a woman to have an abortion not necessary to save her life, §§ 188.205, 188.210, 188.215. The District Court struck down each of the above provisions, among others, and enjoined their enforcement. The Court of Appeals affirmed, ruling that the provisions in question violated this Court's decisions in Roe v. Wade, 410 U. S. 113, and subsequent cases.Held: The judgment is reversed.851 F.2d 1071, reversed.THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, concluding that:1. This Court need not pass on the constitutionality of the Missouri statute's preamble. In invalidating the preamble, the Court of Appeals misconceived the meaning of the dictum in Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 462 U. S. 444, that "a State may not adopt one theory of when life begins to justify its regulation of abortions." Page 492 U. S. 491 That statement means only that a State could not "justify" any abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. The preamble does not, by its terms, regulate abortions or any other aspect of appellees' medical practice, and § 1.205.2 can be interpreted to do no more than offer protections to unborn children in tort and probate law, which is permissible under Roe v. Wade, supra, at 410 U. S. 161-162. This Court has emphasized that Roe implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion, Maher v. Roe, 432 U. S. 464, 432 U. S. 474, and the preamble can be read simply to express that sort of value judgment. The extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the state courts can definitively decide, and, until those courts have applied the preamble to restrict appellees' activities in some concrete way, it is inappropriate for federal courts to address its meaning. Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 325 U. S. 460. Pp. 492 U. S. 504-507.2. The restrictions in §§ 188.210 and 188.215 of the Missouri statute on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions do not contravene this Court's abortion decisions. The Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government may not deprive the individual. DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 489 U. S. 196. Thus, in Maher v. Roe, supra; Poelker v. Doe, 432 U. S. 519; and Harris v. McRae, 448 U. S. 297, this Court upheld governmental regulations withholding public funds for nontherapeutic abortions but allowing payments for medical services related to childbirth, recognizing that a government's decision to favor childbirth over abortion through the allocation of public funds does not violate Roe v. Wade. A State may implement that same value judgment through the allocation of other public resources, such as hospitals and medical staff. There is no merit to the claim that Maher, Poelker, and McRae must be distinguished on the grounds that preventing access to a public facility narrows or forecloses the availability of abortion. Just as in those cases, Missouri's decision to use public facilities and employees to encourage childbirth over abortion places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but leaves her with the same choices as if the State had decided not to operate any hospitals at all. The challenged provisions restrict her ability to obtain an abortion only to the extent that she chooses to use a physician affiliated with a public hospital. Also without merit is the assertion that Page 492 U. S. 492 Maher, Poelker, and McRae must be distinguished on the ground that, since the evidence shows that all of a public facility's costs in providing abortion services are recouped when the patient pays, such that no public funds are expended, the Missouri statute goes beyond expressing a preference for childbirth over abortion by creating an obstacle to the right to choose abortion that cannot stand absent a compelling state interest. Nothing in the Constitution requires States to enter or remain in the abortion business or entitles private physicians and their patients access to public facilities for the performance of abortions. Indeed, if the State does recoup all of its costs in performing abortions and no state subsidy, direct or indirect, is available, it is difficult to see how any procreational choice is burdened by the State's ban on the use of its facilities or employees for performing abortions. The cases in question all support the view that the State need not commit any resources to performing abortions, even if it can turn a profit by doing so. Pp. 492 U. S. 507-511.3. The controversy over § 188.205's prohibition on the use of public funds to encourage or counsel a woman to have a nontherapeutic abortion is moot. The Court of Appeals did not consider § 188.205 separately from §§ 188.210 and 188.215 -- which respectively prohibit the use of public employees and facilities for such counseling -- in holding all three sections unconstitutionally vague and violative of a woman's right to choose an abortion. Missouri has appealed only the invalidation of § 188.205. In light of the State's claim, which this Court accepts for purposes of decision, that § 188.205 is not directed at the primary conduct of physicians or health care providers, but is simply an instruction to the State's fiscal officers not to allocate public funds for abortion counseling, appellees contend that they are not "adversely" affected by the section, and therefore that there is no longer a case or controversy before the Court on this question. Since plaintiffs are masters of their complaints even at the appellate stage, and since appellees no longer seek equitable relief on their § 188.205 claim, the Court of Appeals is directed to vacate the District Court's judgment with instructions to dismiss the relevant part of the complaint with prejudice. Deakins v. Monaghan, 484 U. S. 193, 484 U. S. 200. Pp. 492 U. S. 511-513.THE CHIEF JUSTICE, joined by JUSTICE WHITE and JUSTICE KENNEDY, concluded in Parts II-D and III that:1. Section 188.029 of the Missouri statute -- which specifies, in its first sentence, that a physician, before performing an abortion on a woman he has reason to believe is carrying an unborn child of 20 or more weeks gestational age, shall first determine if the unborn child is viable by using that degree of care, skill, and proficiency that is commonly exercised by practitioners in the field; but which then provides, in its second sentence, that, in making the viability determination, the physician shall Page 492 U. S. 493 perform such medical examinations and tests as are necessary to make a finding of the unborn child's gestational age, weight, and lung maturity -- is constitutional, since it permissibly furthers the State's interest in protecting potential human life. Pp. 492 U. S. 513-521.(a) The Court of Appeals committed plain error in reading § 188.029 as requiring that, after 20 weeks, the specified tests must be performed. That section makes sense only if its second sentence is read to require only those tests that are useful in making subsidiary viability findings. Reading the sentence to require the tests in all circumstances, including when the physician's reasonable professional judgment indicates that they would be irrelevant to determining viability or even dangerous to the mother and the fetus, would conflict with the first sentence's requirement that the physician apply his reasonable professional skill and judgment. It would also be incongruous to read the provision, especially the word "necessary," to require tests irrelevant to the expressed statutory purpose of determining viability. Pp. 492 U. S. 514-515.(b) Section 188.029 is reasonably designed to ensure that abortions are not performed where the fetus is viable. The section's tests are intended to determine viability, the State having chosen viability as the point at which its interest in potential human life must be safeguarded. The section creates what is essentially a presumption of viability at 20 weeks, which the physician, prior to performing an abortion, must rebut with tests -- including, if feasible, those for gestational age, fetal weight, and lung capacity -- indicating that the fetus is not viable. While the District Court found that uncontradicted medical evidence established that a 20-week fetus is not viable, and that 23 1/2 to 24 weeks' gestation is the earliest point at which a reasonable possibility of viability exists, it also found that there may be a 4-week error in estimating gestational age, which supports testing at 20 weeks. Pp. 492 U. S. 515-516.(c) Section 188.029 conflicts with Roe v. Wade and cases following it. Since the section's tests will undoubtedly show in many cases that the fetus is not viable, the tests will have been performed for what were, in fact, second-trimester abortions. While Roe, 410 U.S. at 410 U. S. 162, recognized the State's interest in protecting potential human life as "important and legitimate," it also limited state involvement in second-trimester abortions to protecting maternal health, id. at 410 U. S. 164, and allowed States to regulate or proscribe abortions to protect the unborn child only after viability, id. at 410 U. S. 165. Since the tests in question regulate the physician's discretion in determining the viability of the fetus, § 188.029 conflicts with language in Colautti v. Franklin, 439 U. S. 379, 439 U. S. 388-389, stating that the viability determination is, and must be, a matter for the responsible attending physician's judgment. And, in light of District Court findings that the tests increase the expenses of abortion, their validity Page 492 U. S. 494 may also be questioned under Akron, 462 U.S. at 462 U. S. 434-435, which held that a requirement that second-trimester abortions be performed in hospitals was invalid because it substantially increased the expenses of those procedures. Pp. 492 U. S. 516-517.(d) The doubt cast on the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that Roe's rigid trimester analysis has proved to be unsound in principle and unworkable in practice. In such circumstances, this Court does not refrain from reconsidering prior constitutional rulings, notwithstanding stare decisis. E.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528. The Roe framework is hardly consistent with the notion of a Constitution like ours that is cast in general terms and usually speaks in general principles. The framework's key elements -- trimesters and viability -- are not found in the Constitution's text, and, since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations, rather than a body of constitutional doctrine. There is also no reason why the State's compelling interest in protecting potential human life should not extend throughout pregnancy, rather than coming into existence only at the point of viability. Thus, the Roe trimester framework should be abandoned. Pp. 492 U. S. 517-520.(e) There is no merit to JUSTICE BLACKMUN's contention that the Court should join in a "great issues" debate as to whether the Constitution includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, 381 U. S. 479. Unlike Roe, Griswold did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. The Roe framework sought to deal with areas of medical practice traditionally left to the States, and to balance once and for all, by reference only to the calendar, the State's interest in protecting potential human life against the claims of a pregnant woman to decide whether or not to abort. The Court's experience in applying Roe in later cases suggests that there is wisdom in not necessarily attempting to elaborate the differences between a "fundamental right" to an abortion, Akron, supra, at 462 U. S. 420, n. 1, a "limited fundamental constitutional right," post at 492 U. S. 555, or a liberty interest protected by the Due Process Clause. Moreover, although this decision will undoubtedly allow more governmental regulation of abortion than was permissible before, the goal of constitutional adjudication is not to remove inexorably "politically devisive" issues from the ambit of the legislative process, but is, rather, to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. Furthermore, the suggestion that legislative bodies, in a Nation Page 492 U. S. 495 where more than half the population is female, will treat this decision as an invitation to enact abortion laws reminiscent of the dark ages misreads the decision and does scant justice to those who serve in such bodies and the people who elect them. Pp. 492 U. S. 520-521.2. This case affords no occasion to disturb Roe's holding that a Texas statute which criminalized all nontherapeutic abortions unconstitutionally infringed the right to an abortion derived from the Due Process Clause. Roe is distinguishable on its facts, since Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. P. 492 U. S. 521.JUSTICE O'CONNOR, agreeing that it was plain error for the Court of Appeals to interpret the second sentence of § 188.029 as meaning that doctors must perform tests to find gestational age, fetal weight, and lung maturity, concluded that the section was constitutional as properly interpreted by the plurality, and that the plurality should therefore not have proceeded to reconsider Roe v. Wade. This Court refrains from deciding constitutional questions where there is no need to do so, and generally does not formulate a constitutional rule broader than the precise facts to which it is to be applied. Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346, 297 U. S. 347. Since appellees did not appeal the District Court's ruling that the first sentence of § 188.029 is constitutional, there is no dispute between the parties over the presumption of viability at 20 weeks created by that first sentence. Moreover, as properly interpreted by the plurality, the section's second sentence does nothing more than delineate means by which the unchallenged 20-week presumption may be overcome if those means are useful in determining viability and can be prudently employed. As so interpreted, the viability testing requirements do not conflict with any of the Court's abortion decisions. As the plurality recognizes, under its interpretation of § 188.029's second sentence, the viability testing requirements promote the State's interest in potential life. This Court has recognized that a State may promote that interest when viability is possible. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 476 U. S. 770-771. Similarly, the basis for reliance by the lower courts on Colautti v. Franklin, 439 U. S. 379, 439 U. S. 388-389, disappears when § 188.029 is properly interpreted to require only subsidiary viability findings, since the State has not attempted to substitute its judgment for the physician's ascertainment of viability, which therefore remains "the critical point." Nor does the marginal increase in the cost of an abortion created by § 188.029's viability testing provision, as interpreted, conflict with Akron v. Akron Center for Reproductive Health, 462 U. S. 416, 462 U. S. 434-439, since, here, such costs do not place a "heavy, and unnecessary burden" on a woman's abortion decision, whereas the statutory requirement in Akron, which related to Page 492 U. S. 496 previablity abortions, more than doubled a woman's costs. Moreover, the statutory requirement in Akron involved second-trimester abortions generally; § 188.029 concerns only tests and examinations to determine viability when viability is possible. The State's compelling interest in potential life postviability renders its interest in determining the critical point of viability equally compelling. Thornburgh, supra, at 476 U. S. 770-771. When the constitutional invalidity of a State's abortion statute actually turns upon the constitutional validity of Roe, there will be time enough to reexamine Roe, and to do so carefully. Pp. 492 U. S. 525-531.JUSTICE SCALIA would reconsider and explicitly overrule Roe v. Wade. Avoiding the Roe question by deciding this case in as narrow a manner as possible is not required by precedent and not justified by policy. To do so is needlessly to prolong this Court's involvement in a field where the answers to the central questions are political, rather than juridical, and thus to make the Court the object of the sort of organized pressure that political institutions in a democracy ought to receive. It is particularly perverse to decide this case as narrowly as possible in order to avoid reading the inexpressibly "broader than was required by the precise facts" structure established by Roe v. Wade. The question of Roe's validity is presented here, inasmuch as § 188.029 constitutes a legislative imposition on the judgment of the physician concerning the point of viability and increases the cost of an abortion. It does palpable harm, if the States can and would eliminate largely unrestricted abortion, skillfully to refrain from telling them so. Pp. 492 U. S. 532-537.REHNQUIST, C.J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part II-C, the opinion of the Court with respect to Parts I, II-A, and II-B, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Parts II-D and III, in which WHITE and KENNEDY, JJ., joined. O'CONNOR, J., post, p. 492 U. S. 522, and SCALIA, J., post, p. 492 U. S. 532, filed opinions concurring in part and concurring in the judgment. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 492 U. S. 537. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 492 U. S. 560. Page 492 U. S. 498 |
392 | 1956_571 | MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.Petitioners were arrested in February, 1954 on John Doe warrants, and subsequently were indicted in the United States District Court for the District of Columbia, with two others, for violations of the local lottery laws and for conspiracy to carry on a lottery. [Footnote 1] After indictment, each filed a pretrial motion under Rule 41(e) of the Federal Rules of Criminal Procedure [Footnote 2] asking for the suppression of evidence seized from his person at the time of his arrest. The District Court granted petitioners' motions to suppress on the ground that probable cause had been lacking for the issuance of the arrest warrants directed against them. [Footnote 3] United States v. Hall, 126 F. Supp. 620. The Government Page 354 U. S. 397 appealed the order for suppression to the United States Court of Appeals for the District of Columbia Circuit. The indictment against petitioners had not been dismissed, but the Government informed the Court of Appeals that, without the "numbers" paraphernalia seized and suppressed, it would lack sufficient evidence to proceed on any of the counts involving petitioners, and therefore would have to dismiss the indictment. Petitioners challenged the jurisdiction of the Court of Appeals to hear an appeal by the Government from an order of the District Court granting a motion to suppress that was made while an indictment was pending in the same District Court. The Court of Appeals sustained its jurisdiction on the authority of its prior decision in United States v. Cefaratti, [Footnote 4] and reversed the district judge on the merits, holding that there had been probable cause to justify the issuance of warrants for the arrest of petitioners. 98 U.S.App.D.C. 244, 234 F.2d 679. We granted certiorari, limited to the question of appealability of the suppression order, because of the importance of that question to the administration of the federal criminal laws. 352 U.S. 906.The Government contends, most broadly, that the suppression order of any District Court is "final" and sufficiently separable and collateral to the criminal case to be appealable under the general authority of 28 U.S.C. § 1291, notwithstanding that such an order is not listed Page 354 U. S. 398 among the few types of orders in criminal cases from which the Government may appeal pursuant to 18 U.S.C. § 3731. [Footnote 5] More narrowly, failing acceptance of the position Page 354 U. S. 399 just stated, the Government maintains that an order of suppression is, within the criminal case, a "final" order, and thus appealable under the statutory provisions for appeals by the Government in criminal cases that are applicable exclusively in the District of Columbia. [Footnote 6] It will be convenient to discuss the issues in the same order.IIt is axiomatic, as a matter of history as well as doctrine, that the existence of appellate jurisdiction in a specific federal court over a given type of case is dependent upon authority expressly conferred by statute. And since the jurisdictional statutes prevailing at any given time are so much a product of the whole history of both growth and limitation of federal court jurisdiction since the First Judiciary Act, 1 Stat. 73, they have always been interpreted in the light of that history and of the axiom that clear statutory mandate must exist to found jurisdiction. It suffices to cite as authority for these principles some of the cases in which they have been applied to the general problem now before us, the availability of appellate review sought by the Government in criminal cases. E.g., 7 U. S. More, 3 Cranch 159; United States v. Sanges, 144 U. S. 310; In re Heath, 144 Page 354 U. S. 400 U.S. 92; Cross v. United States, 145 U. S. 571; United States v. Burroughs, 289 U. S. 159. [Footnote 7]There is a further principle, also supported by the history of federal appellate jurisdiction, that importantly pertains to the present problem. That is the concept that, in the federal jurisprudence, at least, [Footnote 8] appeals by the Government in criminal cases are something unusual, exceptional, not favored. The history shows resistance of the Court to the opening of an appellate route for the Government until it was plainly provided by the Congress, and after that a close restriction of its uses to those authorized by the statute. Indeed, it was 100 years before the defendant in a criminal case, even a capital case, was afforded appellate review as of right. [Footnote 9] And Page 354 U. S. 401 after review on behalf of convicted defendants was made certain by the Acts of 1889 and 1891, the Court continued to withhold an equivalent remedy from the Government, despite the existence of colorable statutory authority for permitting the Government to appeal in those important cases where a prosecution was dismissed upon the trial court's opinion of the proper construction or the constitutional validity of a federal statute. [Footnote 10] When the Congress responded to the problem of such cases in the Criminal Appeals Act of 1907, now 18 U.S.C. § 3731, Page 354 U. S. 402 it did so with careful expression of the limited types of orders in criminal cases as to which the Government might thenceforth have review. [Footnote 11] It was as late as 1942 before the Criminal Appeals Act was amended to permit appeals by the Government from decisions, granting dismissal or arrest of judgment, other than those grounded Page 354 U. S. 403 by the trial court upon the construction or invalidity of a statute. [Footnote 12]It is true that certain orders relating to a criminal case may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders, and thus be appealable on the authority of 28 U.S.C. § 1291, without regard to the limitations of 18 U.S.C. §3731, just as, in civil litigation, orders of equivalent distinctness are appealable on the same authority without regard to the limitations of 28 U.S.C. § 1292. [Footnote 13] The instances in criminal cases are very few. The only decision of this Court applying to a criminal case the reasoning of Cohen v. Beneficial Loan Corp., 337 U. S. 541, held that an order relating to the amount of bail to be exacted falls into this category. Stack v. Boyle, 342 U. S. 1. Earlier cases illustrated, sometimes without discussion, that, under certain conditions, orders for the suppression or return of illegally seized property are appealable at once, as where the motion is made prior to indictment, [Footnote 14] or in a different district from that in which the trial will occur, [Footnote 15] or after dismissal of the Page 354 U. S. 404 case, [Footnote 16] or perhaps where the emphasis is on the return of property rather than its suppression as evidence. [Footnote 17] In such cases, as appropriate, the Government as well as the moving person has been permitted to appeal from an adverse decision. Burdeau v. McDowell, 256 U. S. 465.But a motion made by a defendant after indictment and in the district of trial has none of the aspects of independent just noted, as the Court held in Cogen v. United States, 278 U. S. 221. As the opinion by Mr. Justice Brandeis explains, the denial of a pretrial motion in this posture is interlocutory in form and real effect, and thus not appealable at the instance of the defendant. We think the granting of such a motion also has an interlocutory character, and therefore cannot be the subject of an appeal by the Government. In the present case, the Page 354 U. S. 405 Government argues, as it offered to stipulate below, that the effect of suppressing the evidence seized from petitioners at their arrests will be to force dismissal of the indictment for lack of evidence on which to go forward. But that is not a necessary result of a suppression order relating to particular items of evidence, nor have we been shown whether it will be the result in practice in the generality of cases. Appeal rights cannot depend on the facts of a particular case. The Congress necessarily has had to draw the jurisdictional statutes in terms of categories. To fit an order granting suppression before trial in a criminal case into the category of "final decisions" requires a straining that is not permissible in the light of the principles and the history concerning criminal appeals, especially Government appeals, that are outlined above and more fully set forth in the cases cited. [Footnote 18] Other Courts of Appeals that have considered the problem have concluded that this order is not "final" or appealable at the behest of the Government. [Footnote 19] Page 354 U. S. 406The Government exhorts us not to exalt form over substance, in contending that the present order has virtually the same attributes as the suppression orders found reviewable in earlier cases. We do not agree that the order entered in a pending criminal case has the same characteristics of independence and completeness as a suppression order entered under other circumstances. Moreover, in a limited sense, form is substance with respect to ascertaining the existence of appellate jurisdiction. While it is always necessary to categorize a situation realistically -- to place a given order according to its real effect -- it remains true that the categories themselves were defined by the Congress in terms of form. Many interlocutory decisions of a trial court may be of grave importance to a litigant, yet are not amenable to appeal at the time entered, and some are never satisfactorily reviewable. In particular is this true of the Government in a criminal case, for there is no authority today for interlocutory appeals, [Footnote 20] and, even if the Government had a general right to review upon an adverse conclusion of a case after trial, much of what it might complain of would have been allowed up in the sanctity of the jury's verdict. [Footnote 21] Page 354 U. S. 407If there is serious need for appeals by the Government from suppression orders, or unfairness to the interests of effective criminal law enforcement in the distinctions we have referred to, it is the function of the Congress to decide whether to initiate a departure from the historical pattern of restricted appellate jurisdiction in criminal cases. [Footnote 22] We must decide the case on the statutes that Page 354 U. S. 408 exist today, in the light of what has been the development of the jurisdiction. It is only through legislative resolution, furthermore, that peripheral questions regarding the conduct of Government appeals in this situation can be regulated. Some of the problems directed at legislative judgment involve such particulars as confinement or bail of the defendant, acceleration of the Government's appeal, and discretionary limitation of the right to take the appeal. [Footnote 23]IIThe Court of Appeals sustained its jurisdiction on the basis of statutory provisions peculiar to the District of Columbia. Here again, the jurisdictional statutes are a product of historical development, and must be interpreted in that light. During the century from 1801 to 1901, the Congress several times organized and reorganized the courts of the District of Columbia, independently of the federal courts in the States. It is not necessary here to relate the chronology of shuffled jurisdictions and Page 354 U. S. 409 nomenclature. [Footnote 24] It is sufficient to note that, from 1838 on, review of a final judgment of conviction in the criminal trial court was available in the appellate tribunal of the District. [Footnote 25] However, the appellate judgment was not further reviewable in this Court in any manner during this period. In re Heath, 144 U. S. 92; Cross v. United States, 145 U. S. 571. When the Acts of 1889 and 1891 opened up appellate review of criminal convictions in the federal courts throughout the country at first directly to this Court, it was held that those statutes did not apply to cases originating in the District of Columbia. Ibid.In 1901, the Congress codified the laws of the District of Columbia, including those relating to the judicial system. District of Columbia Code, 31 Stat. 1189. Criminal jurisdiction was vested in the trial court of general jurisdiction, then known as the Supreme Court of the District of Columbia. [Footnote 26] A single section of the statute, § 226, conferred appellate jurisdiction on the Court of Appeals over decisions of the Supreme Court in general terms, apparently including criminal decisions. A party aggrieved could take an appeal from a final order or judgment, and was entitled to allowance of an appeal from an interlocutory order affecting possession of property. In addition, the Court of Appeals could allow an Page 354 U. S. 410 appeal, in its discretion, from any other interlocutory order when it was shown "that it will be in the interest of justice to allow such appeal." [Footnote 27]Section 935 of the Code of 1901 established this new provision:"In all criminal prosecutions, the United States or the District of Columbia, as the case may be, shall have the same right to appeal that is given to the defendant, including the right to a bill of exceptions: Provided, That if on such appeal it shall be found that there was error in the rulings of the court during the trial, a verdict in favor of the defendant shall not be set aside."31 Stat. 1341. The legislative history of the Code does not indicate why the Government was now given a right of appeal, but we may surmise that the draftsmen of the Code desired to adopt a procedural technique that was then in force in a large number of States. [Footnote 28] The "same right of appeal that is given to the defendant" would be defined by reference to § 226, of course, in cases coming up from the Supreme Court. After the Congress conferred on the United Page 354 U. S. 411 States a more limited right of appeal from the District Courts in the Criminal Appeals Act of 1907, running directly to this Court, it was held that the 1907 Act was not applicable to cases decided in the Supreme Court of the District of Columbia. There, § 935 provided "the complete appellate system." United States v. Burroughs, 289 U. S. 159, 289 U. S. 164. When the Criminal Appeals Act was broadened in 1942, it was then first made applicable to the District of Columbia. [Footnote 29] But the text of § 935 was not repealed at that time, nor was it repealed in connection with the 1948 revisions of the Judicial Code and the Criminal Code. [Footnote 30] It may be concluded, then, that, even today, criminal appeals by the Government in the District of Columbia are not limited to the categories set forth in 18 U.S.C. § 3731, although, as to cases of the type covered by that special jurisdictional statute, its explicit directions will prevail over the general terms of § 935, now found in the District of Columbia Code, 1951 Edition, as § 23-105. United States v. Hoffman, 82 U.S.App.D.C. 153, 161 F.2d 881, decided on merits, 335 U. S. 335 U.S. 77.Meanwhile, under the general provisions of § 226 of the 1901 Code, the practice had developed of allowing appeals from interlocutory orders in criminal cases. A particular instance disturbed the Congress in 1926, and it immediately passed a statute to eliminate the practice. It is apparent from the legislative history that it was interlocutory appeals for the defendant that were considered anomalous in a federal court and undesirable from the viewpoint of prompt dispatch of criminal prosecutions, [Footnote 31] but the new provision in terms applied equally to the possibility of an interlocutory appeal's being allowed Page 354 U. S. 412 to the Government through the combined provisions of § 226 and §935. The 1926 enactment, as it now reads in the District of Columbia Code, 1951 Edition, § 17-102, states:"Nothing contained in any Act of Congress shall be construed to empower the United States Court of Appeals for the District of Columbia to allow an appeal from any interlocutory order entered in any criminal action or proceeding or to entertain any such appeal heretofore or hereafter allowed or taken."44 Stat. 831, as amended. 48 Stat. 926. The allowance of appeal technique no longer exists as to cases coming from the District Court (the former Supreme Court), but, if this section does not continue to have life by force of the words "or hereafter . . . taken," it does not matter, for § 226 itself was replaced in 1949 [Footnote 32] by the nationwide appellate jurisdiction provisions of Title 28 of the U.S. Code, § 1291 and §1292, which do not authorize interlocutory appeals in criminal cases.Thus the statutory context in which the court below made its ruling is seen to be this: subject to stated limitations, the Government has the "same right of appeal" as the defendant in criminal cases in the District Court for the District of Columbia, but no party can appeal an interlocutory order in such cases. In United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d 13, the Court of Appeals reconciled these rules by holding:"Since defendants may appeal from 'final decisions,' to say that 'the United States . . . shall have the same right of appeal that is given to the defendant . . . ' means that . . . the United States may appeal from final decisions. It does not mean that the United States cannot appeal from a final decision Page 354 U. S. 413 unless it so happens that an opposite decision would also have been final."91 U.S.App.D.C. at 302, 202 F.2d at 17. Applying this reasoning to orders for the suppression of evidence, the Court of Appeals concluded that such an order had the requisite finality and independence of the criminal case to be appealable under 28 U.S.C. § 1291. In the present case, the court below reaffirmed its Cefaratti analysis. Insofar as these decisions, resting on opinions of this Court, [Footnote 33] imply a reviewability for suppression orders that would be general to cases from all Federal District Courts, we have already indicated our disagreement earlier in this opinion.But the Government contends that appealability under the District of Columbia statutes, though it requires a "final decision," does not call for the independent or separable character of the orders in the cases relied on by the Court of Appeals, because here it is not essential to characterize an order as plenary or disassociated from the criminal case, inasmuch as the Government has a comprehensive right of appeal within a criminal case in the District of Columbia. We do not agree that the standard of "final decisions," as prerequisite to appeal, is something less or different under 28 U.S.C. § 1291 as the successor to § 226 of the District of Columbia Code of 1901 than it is under § 1291 as the successor to the nationally applicable appeal provisions of the Judicial Code. Cf. Stack v. Boyle, 342 U. S. 1, 342 U. S. 6, 342 U. S. 12. By this, we do not mean to say that § 935 of the 1901 Code is no broader than 18 U.S.C. § 3731, but merely that the underlying concepts of finality are the same in each case.As the outline of the statutory development demonstrates, both this Court and the Congress have been strict Page 354 U. S. 414 in confining rights of appeal in criminal cases in the District of Columbia to those plainly authorized by statute. We do not believe that the combined provisions of the 1901 and 1926 enactments permit the Government to appeal in any situation where the decision against it may have some characteristics of finality, yet does not either terminate the prosecution or pertain to an independent peripheral matter such as would be appealable in other federal courts on the authority of Stack v. Boyle, supra. The 1901 Code gave the Government "the same right of appeal that is given to the defendant," while the 1926 amendment to the Code restricted the defendant's right of appeal to those decisions of the Supreme Court (now District Court) that have a "final" effect, as that term is understood in defining appellate jurisdiction. We conclude that full force cannot be given to the limitations imposed on criminal appeals in the District of Columbia unless the Government is restricted as is the defendant. This is not to say "that the United States cannot appeal from a final decision unless it so happens that an opposite decision would also have been final," as the Court of Appeals suggested in Cefaratti. Quite to the contrary, our holding is that the statutory provisions applicable to the District of Columbia, subject to the further limitations stated therein, afford the Government an appeal only from an order against it which terminates a prosecution or makes a decision whose distinct or plenary character meets the standards of the precedents applicable to finality problems in all federal courts. [Footnote 34] Page 354 U. S. 415In thus defining the Government's appeal rights under § 935 of the 1901 Code, we are mindful of the considerations that motivated the Congress to specify in 1926 that interlocutory appeals in criminal cases were not possible:"Promptness in the dispatch of the criminal business of the courts is by all recognized as in the highest degree desirable. Greater expedition is demanded by a wholesome public opinion."S.Rep. No. 926, 69th Cong., 1st Sess. And cf. H.R.Rep. No. 1363, 69th Cong., 1st Sess. Delays in the prosecution of criminal cases are numerous and lengthy enough without sanctioning appeals that are not plainly authorized by statute. We cannot do so here without a much clearer mandate than exists in the present terms and the historical development of the relevant provisions. Cf. United States v. Burroughs, 289 U. S. 159; United States v. Sanges, 144 U. S. 310.The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for proceedings consistent with this opinion.Reversed | U.S. Supreme CourtCarroll v. United States, 354 U.S. 394 (1957)Carroll v. United StatesNo. 571Argued April 4, 1957Decided June 24, 1957354 U.S. 394SyllabusPetitioners were arrested on warrants and subsequently were indicted in the United States District Court for the District of Columbia for violations of local lottery laws and for conspiracy to violate them. After indictment, each filed a pretrial motion under Rule 41(e) of the Federal Rules of Criminal Procedure for suppression of evidence seized from his person at the time of his arrest. The District Court granted the motions on the ground that probable cause had been lacking for issuance of the arrest warrants. Urging that, without the evidence that had been seized and suppressed, it would have to dismiss the indictment for want of sufficient evidence to proceed with the prosecution, the Government appealed to the United States Court of Appeals for the District of Columbia Circuit, which reversed the District Court.Held: the appeal should have been dismissed; the Government had no right to appeal from such an order in such circumstances, either under the general statutes relating to the appellate jurisdiction of all federal courts of appeals or under the special statutes relating to the appellate jurisdiction of the United States Court of Appeals for the District of Columbia Circuit. Pp. 354 U. S. 396-415.1. The suppression order here involved is not sufficiently separable and collateral to the criminal case to be "final," and hence appealable under the general authority of 28 U.S.C. § 1291, giving the federal courts of appeals jurisdiction of appeals from "all final decisions" of the district courts. Pp. 354 U. S. 399-408.(a) Appellate jurisdiction in a specific federal court over a given type of case is dependent on authority expressly conferred by statute. Pp. 354 U. S. 399-400.(b) In federal jurisprudence, at least, appeals by the Government in criminal cases are something unusual, exceptional and not favored. Pp. 354 U. S. 400-403.(c) The suppression order here involved, having been entered after indictment and in the district of trial, has an interlocutory character, and therefore cannot be appealed by the Government as a "final decision." Pp. 354 U. S. 403-405. Page 354 U. S. 395(d) The suppression order here involved does not have sufficient characteristics of independence and completeness to make it appealable as an order separable from, or collateral to, the criminal case. Pp. 354 U. S. 403-408.2. The suppression order here involved is not a "final" order within the criminal case, and thus appealable under the statutory provisions applicable in the District of Columbia in criminal cases. Pp. 354 U. S. 408-415.(a) Even today, criminal appeals by the Government in the District of Columbia are not limited to the categories set forth in 18 U.S.C. § 3731, although, as to cases covered by that nationwide jurisdictional statute, its explicit directions will prevail over the terms of § 935 of the District of Columbia Code of 1901, now found in §23-105 of the District of Columbia Code (1951 ed.). Pp. 354 U. S. 408-411.(b) Under § 226 of the District of Columbia Code of 1901, the practice had developed of allowing appeals from interlocutory orders in criminal cases; but § 226 was replaced in 1949 by the nationwide appellate jurisdiction provisions of 28 U.S.C. §§1291 and 1292, which do not authorize interlocutory appeals in criminal cases. Pp. 354 U. S. 411-413.(c) The standard of "final decisions" as prerequisite to appeal is not something less or different under 18 U.S.C. § 1291 as the successor to § 226 of the District of Columbia Code of 1901 than it is under § 1291 as the successor to the nationally applicable appeal provisions of the Judicial Code. P. 354 U. S. 413.(d) The statutory provisions applicable to the District of Columbia, subject to the further limitations stated therein, afford the Government an appeal only from an order against it which terminates a prosecution or makes a decision whose distinct or plenary character meets the standards of the precedents applicable to finality problems in all federal courts. Pp. 354 U. S. 413-415.98 U.S.App.D.C. 244, 234 F.2d 679, reversed and remanded. Page 354 U. S. 396 |
393 | 1967_699 | MR. JUSTICE BRENNAN delivered the opinion of the Court.Appellants brought this action for declaratory and injunctive relief in the District Court for the Southern District of Mississippi. They sought a judgment declaring that the Mississippi Anti-Picketing Law [Footnote 1] is an overly Page 390 U. S. 613 broad and vague regulation of expression, and therefore void on its face. They also sought a permanent injunction restraining appellees -- the Governor and other Mississippi officials -- from enforcing the statute in pending or future criminal prosecutions or otherwise, alleging that the then pending prosecutions against them for violating the statute [Footnote 2] were part of a plan of selective enforcement engaged in by appellees with no expectation of securing convictions, but solely to discourage appellants from picketing to protest racial discrimination in voter registration and to encourage Negro citizens to attempt to register to vote.A three-judge court initially considered the issues on the amended complaint and answers, and dismissed the complaint "in the exercise of its sound judicial discretion" and "in furtherance of the doctrine of abstention," having concluded "that such extraordinary relief is not due or suggested in this case. . . ." 244 F. Supp. 846, 849. We vacated the dismissal, 381 U. S. 741, and remanded for reconsideration in light of our intervening decision in Dombrowski v. Pfister, 380 U. S. 479. [Footnote 3] On remand, the three-judge Page 390 U. S. 614 court [Footnote 4] conducted an evidentiary hearing and again dismissed, this time with prejudice. 262 F. Supp. 873. We noted probable jurisdiction. 389 U. S. 89. We affirm.IThe Mississippi Anti-Picketing Law was enacted by the Mississippi Legislature and signed by the Governor on April 8, 1964, and became effective immediately. The Forrest County voting registration office is housed in the county courthouse in Hattiesburg. The courthouse is set back a distance from the street, and is reached by several paved walks surrounding grass plots and a monument. On January 22, 1964, civil rights organizations fostering increased voter registration of Negro citizens staged a large demonstration on the courthouse site. Thereafter, they maintained a picket line on the grounds every day except Sunday from January 23 until May 18, 1964. To facilitate access to the courthouse, the sheriff at the outset blocked off with barricades a small "march route" area within the grounds to the right of the main entrance to the courthouse, where the pickets, usually few in number, were allowed to picket until April 9. On April 9, the day following the enactment of the Anti-Picketing Law, the sheriff, accompanied by other county Page 390 U. S. 615 officials, read the new law to the pickets at the "march route" and directed them to disperse, which they did. The sheriff also removed the barricades marking the "march route." On the morning of April 10, the pickets, now increased to 35 or 40 persons, appeared at the courthouse and resumed picketing along the now unmarked "march route." The pickets were arrested and formally charged with violation of the Anti-Picketing statute. Others were arrested that afternoon. Seven more pickets were arrested and charged on the morning of April 11. The complaint in this action was filed April 13. Picketing nonetheless continued on the "march route" every day until May 18, but no further arrests were made until May 18, when nine pickets were arrested and charged. All picketing stopped thereafter.IIThe District Court's response on the remand to reconsider the case in light of Dombrowski was first to render a declaratory judgment, cf. Zwickler v. Koota, 389 U. S. 241, [Footnote 5] that the statute was not void on its face, rejecting appellants' contention that it is so broad, vague, indefinite, and lacking in definitely ascertainable standards as to be unconstitutional on its face. We agree with the District Court.Appellants advance a two-pronged argument. First, they argue that the statute forbids picketing in terms Page 390 U. S. 616 "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. . . ." Connally v. General Construction Co., 269 U. S. 385, 269 U. S. 391. [Footnote 6] But the statute prohibits only "picketing . . . in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any . . . county . . courthouses. . . ." The terms "obstruct" and "unreasonably interfere" plainly require no "guess[ing] at [their] meaning." Appellants focus on the word "unreasonably." [Footnote 7] It is a widely used and well understood word, and clearly so when juxtaposed with "obstruct" and "interfere." We conclude that the statute clearly and precisely delineates its reach in words of common understanding. [Footnote 8] It is "a precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be . . . proscribed." Edwards v. South Carolina, 372 U. S. 229, 372 U. S. 236.The second prong of appellants' argument is that the statute, even assuming that it is"lacking neither clarity nor precision, is void for 'overbreadth,' that is, that it offends the constitutional principle that""a governmental Page 390 U. S. 617 purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."Zwickler v. Koota, supra, at 389 U. S. 250. [Footnote 9] The argument centers on the fact that the proscription of the statute embraces picketing employed as a vehicle for constitutionally protected protest. But "picketing and parading [are] subject to regulation even though intertwined with expression and association," Cox v. Louisiana, 379 U. S. 559, 379 U. S. 563, [Footnote 10] and this statute does not prohibit picketing so intertwined unless engaged in in a manner which obstructs or unreasonably interferes with ingress or egress to or from the courthouse. Prohibition of conduct which has this effect does not abridge constitutional liberty, "since such activity bears no necessary relationship to the freedom to . . . distribute information or opinion." Schneider v. State, 308 U. S. 147, 308 U. S. 161. The statute is therefore"a valid law dealing with conduct subject to regulation so as to vindicate important interests of society, and . . . the fact that free speech is intermingled with such conduct does not bring with it constitutional protection."Cox v. Louisiana, supra, at 379 U. S. 564.IIIThe District Court's further response on remand to reconsider the case in light of Dombrowski was to deny Page 390 U. S. 618 injunctive relief, after an evidentiary hearing, on findings that appellants failed to show sufficient irreparable injury to justify such relief. Appellants argue in this Court that the record discloses sufficient irreparable injury to entitle them to the injunction sought, even if the statute is constitutional on its face.Dombrowski recognized, 380 U.S. at 380 U. S. 483-485, the continuing validity of the maxim that a federal district court should be slow to act "where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court," Douglas v. City of Jeannette, 319 U. S. 157, 319 U. S. 162; see Zwickler v. Koota, supra, at 389 U. S. 253. Federal interference with a State's good faith administration of its criminal laws "is peculiarly inconsistent with our federal framework," and a showing of "special circumstances" beyond the injury incidental to every proceeding brought lawfully and in good faith is requisite to a finding of irreparable injury sufficient to justify the extraordinary remedy of an injunction. 380 U.S. at 380 U. S. 484. We found such "special circumstances" in Dombrowski. The prosecutions there begun and threatened were not, as here, for violation of a statute narrowly regulating conduct which is intertwined with expression, but for alleged violations of various sections of excessively broad Louisiana statutes regulating expression itself -- the Louisiana Subversive Activities and Communist Control Law and the Communist Propaganda Control Law. These statutes were challenged as overly broad and vague regulations of expression. Despite state court actions quashing arrest warrants and suppressing evidence purportedly seized in enforcing them, Louisiana officials continued to threaten prosecutions of Dombrowski and his co-appellants under them. In that context, we held that a case of "the threat of irreparable injury required by traditional doctrines of equity" was made Page 390 U. S. 619 out. 380 U.S. at 380 U. S. 490. We held further that the sections of the Subversive Activities and Communist Control Law (for alleged violations of which indictments had been obtained while the case was pending in the federal court) were patently unconstitutional on their face, and remanded with direction to frame an appropriate injunction restraining prosecution of the indictments.In short, we viewed Dombrowski to be a case presenting a situation of the "impropriety of [state officials] invoking the statute in bad faith to impose continuing harassment in order to discourage appellants' activities. . . ." 380 U.S. at 380 U. S. 490. In contrast, the District Court expressly found in this case"that there was no harassment, intimidation, or oppression of these complainants in their efforts to exercise their constitutional rights, but they were arrested and they are being prosecuted in good faith for their deliberate violation of that part of the statute which denounces interference with the orderly use of courthouse facilities by all citizens alike."262 F. Supp. at 876, see also 244 F. Supp. at 848-849. We cannot say from our independent examination of the record that the District Court erred in denying injunctive relief.Any chilling effect on the picketing as a form of protest and expression that flows from good faith enforcement of this valid statute would not, of course, constitute that enforcement an impermissible invasion of protected freedoms. Cox v. Louisiana, supra, at 379 U. S. 564. Appellants' case that there are "special circumstances" establishing irreparable injury sufficient to justify federal intervention must therefore come down to the proposition that the statute was enforced against them not because the Mississippi officials in good faith regarded the picketing as violating the statute, but in bad faith as harassing appellants' exercise of protected expression with no intention of pressing the charges or with no expectation of obtaining Page 390 U. S. 620 convictions, knowing that appellants' conduct did not violate the statute. We agree with the District Court that the record does not establish the bad faith charged. This is therefore not a case in which". . . a federal court of equity, by withdrawing the determination of guilt from the state courts, could rightly afford [appellants] any protection which they could not secure by prompt trial and appeal pursued to this Court."Douglas v. City of Jeannette, supra, at 319 U. S. 164. We have not hesitated on direct review to strike down applications of constitutional statutes which we have found to be unconstitutionally applied to suppress protected freedoms. See Cox v. Louisiana, supra; Wright v. Georgia, 373 U. S. 284; Edwards v. South Carolina, supra.Appellants argue that the adoption of the statute in the context of the picketing at the courthouse, and its immediate enforcement by the arrests on April 10 and 11, provide compelling evidence that the statute was conceived and enforced solely to bring a halt to the picketing. Appellants buttress their argument by characterizing as "indefensible entrapment" the enforcement of the statute on April 10 against picketing conduct which county officials had permitted for almost three months along the "march route" marked out by the officials themselves. This argument necessarily implies the suggestion that, had the statute been law when the picketing started in January, it would not have been enforced. There is no support whatever in the record for that proposition. The more reasonable inference is that the authorities believed that, until enactment of the statute on April 8, they had no choice but to allow the picketing. In any event, upon the adoption of the law, it became the duty of the authorities in good faith to enforce it, and to prosecute for picketing that violated that law. Similarly, insofar as appellants argue that selective enforcement was shown by the failure to arrest Page 390 U. S. 621 those who were picketing from April 11 to May 18, the short answer is that it is at least as reasonable to infer from the record that the authorities did not regard their conduct in that period as violating the statute. Indeed, the fact that no arrests were made over that five-week period is itself some support for the District Court's rejection of appellants' primary contention that appellees used the statute in bad faith to discourage the pickets from picketing to foster increased voter registration of Negro citizens.Nor are we persuaded by the argument that, because the evidence adduced at the hearing of the pickets' conduct throughout the period would not be sufficient, in the view of appellants, to sustain convictions on a criminal trial, it was demonstrated that the State had no expectation of securing valid convictions. Dombrowski v. Pfister, supra, at 380 U. S. 490. This argument mistakenly supposes that "special circumstances" justifying injunctive relief appear if it is not shown that the statute was, in fact, violated. But the question for the District Court was not the guilt or innocence of the persons charged; the question was whether the statute was enforced against them with no expectation of convictions, but only to discourage exercise of protected rights. The mere possibility of erroneous application of the statute does not amount "to the irreparable injury necessary to justify a disruption of orderly state proceedings." Dombrowski v. Pfister, supra, at 380 U. S. 485. The issue of guilt or innocence is for the state court at the criminal trial; the State was not required to prove appellants guilty in the federal proceeding to escape the finding that the State had no expectation of securing valid convictions. [Footnote 11] Appellants say that the picketing was nonobstructive, Page 390 U. S. 622 but the State claims quite the contrary, and the record is not totally devoid of support for the State's claim.Appellants argue that selective enforcement was shown by the evidence that, subsequent to the arrests of the pickets, parades were held in Hattiesburg during which the streets of the downtown area, including the locale of the courthouse, were cordoned off during daytime business hours and the sidewalks were obstructed by crowds of spectators during the parades. But this statute is not aimed at obstructions resulting from parades on the city streets. All that it prohibits is the obstruction of or unreasonable interference with ingress and egress to and from public buildings, including courthouses, and with traffic on the streets or sidewalks adjacent to those buildings. There was no evidence of conduct of that nature at any other place which would have brought the statute into play, let alone evidence that the authorities allowed such conduct without enforcing the statute.Affirmed | U.S. Supreme CourtCameron v. Johnson, 390 U.S. 611 (1968)Cameron v. JohnsonNo. 699Argued March 5-6, 1968Decided April 22, 1968390 U.S. 611SyllabusAppellants, to protest racial voting discrimination and encourage Negro registration, picketed the Forrest County, Mississippi, voting registration office in the county courthouse each weekday from January 23 to May 18, 1964, walking in a "march route" set off by the sheriff with barricades to facilitate access to the courthouse. On April 8, the legislature enacted the Mississippi Anti-Picketing Law, which, as amended, prohibits "picketing . . . in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any county . . . courthouses. . . ." On April 9, the sheriff read the new law to the pickets, ordered them to disperse, and removed the barricades. When the pickets the next morning resumed marching along the now unmarked route, they were arrested for violating the Anti-Picketing statute. Other arrests were made that, afternoon, on April 11, and on May 18. On April 13, appellants brought this action seeking a judgment declaring that the Anti-Picketing Law is an invalid regulation of expression because of overbreadth and vagueness and an injunction against its enforcement in the prosecutions against them or otherwise, contending that the prosecutions were solely to discourage their freedom of expression. Following initial dismissal of the complaint and this Court's remand (381 U.S. 741) for reconsideration in the light of the intervening decision in Dombrowski v. Pfister, 380 U. S. 479, an evidentiary hearing was held and the three-judge District Court again dismissed the complaint, holding that the statute was not void on its face and that appellants had failed to show sufficient irreparable injury to warrant injunctive relief.Held:1. The Mississippi Anti-Picketing Law is a valid regulatory statute; it is clear and precise and is not overly broad, since it does not prohibit picketing unless it obstructs or unreasonably interferes with ingress and egress to or from the courthouse. Pp. 390 U. S. 615-417. Page 390 U. S. 6122. This Court's independent examination of the record does not disclose that the officials acted in bad faith to harass appellants' exercise of the right to free expression; that the statute was adopted to halt appellants' picketing; or that the State had no expectation of securing valid convictions. This is therefore not a case where a federal equity court,"by withdrawing the determination of guilt from state courts could rightly afford [appellants] any protection which they could not secure by prompt trial and appeal pursued to this Court."Douglas v. City of Jeannette, 319 U. S. 157, 319 U. S. 164. Dombrowski, supra, distinguished. Pp. 390 U. S. 617-622.262 F. Supp. 873, affirmed. |
394 | 1983_81-2159 | JUSTICE WHITE delivered the opinion of the Court.Last Term, this Court examined the relationship between federal and state authority in the nuclear energy field and concluded that States are precluded from regulating the Page 464 U. S. 241 safety aspects of nuclear energy. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U. S. 190, 461 U. S. 211-213 (1983). This case requires us to determine whether a state-authorized award of punitive damages arising out of the escape of plutonium from a federally licensed nuclear facility is preempted either because it falls within that forbidden field or because it conflicts with some other aspect of the Atomic Energy Act.IKaren Silkwood was a laboratory analyst for Kerr-McGee [Footnote 1] at its Cimarron plant near Crescent, Okla. The plant fabricated plutonium fuel pins for use as reactor fuel in nuclear powerplants. Accordingly, the plant was subject to licensing and regulation by the Nuclear Regulatory Commission (NRC) (then the Atomic Energy Commission) pursuant to the Atomic Energy Act, 42 U.S.C. § 2011 et seq. (1976 ed. and Supp. V). [Footnote 2]During a 3-day period of November, 1974, Silkwood was contaminated by plutonium from the Cimarron plant. On November 5, Silkwood was grinding and polishing plutonium samples, utilizing glove boxes designed for that purpose. [Footnote 3] In accordance with established procedures, she checked her hands for contamination when she withdrew them from the Page 464 U. S. 242 glove box. When some contamination was detected, a more extensive check was performed. A monitoring device revealed contamination on Silkwood's left hand, right wrist, upper arm, neck, hair, and nostrils. She was immediately decontaminated, and at the end of her shift, the monitors detected no contamination. However, she was given urine and fecal kits and was instructed to collect samples in order to check for plutonium discharge.The next day, Silkwood arrived at the plant and began doing paperwork in the laboratory. Upon leaving the laboratory, Silkwood monitored herself and again discovered surface contamination. Once again, she was decontaminated.On the third day, November 7, Silkwood was monitored upon her arrival at the plant. High levels of contamination were detected. Four urine samples and one fecal sample submitted that morning were also highly contaminated. [Footnote 4] Suspecting that the contamination had spread to areas outside the plant, the company directed a decontamination squad to accompany Silkwood to her apartment. Silkwood's roommate, who was also an employee at the plant, was awakened and monitored. She was also contaminated, although to a lesser degree than Silkwood. The squad then monitored the apartment, finding contamination in several rooms, with especially high levels in the bathroom, the kitchen, and Silkwood's bedroom.The contamination level in Silkwood's apartment was such that many of her personal belongings had to be destroyed. Silkwood herself was sent to the Los Alamos Scientific Laboratory to determine the extent of contamination in her vital body organs. She returned to work on November 13. That night, she was killed in an unrelated automobile accident. 667 F.2d 908, 912 (CA10 1981). Page 464 U. S. 243Bill Silkwood, Karen's father, brought the present diversity action in his capacity as administrator of her estate. The action was based on common law tort principles under Oklahoma law, and was designed to recover for the contamination injuries to Karen's person and property. Kerr-McGee stipulated that the plutonium which caused the contamination came from its plant, and the jury expressly rejected Kerr-McGee's allegation that Silkwood had intentionally removed the plutonium from the plant in an effort to embarrass the company. However, there were no other specific findings of fact with respect to the cause of the contamination.During the course of the trial, evidence was presented which tended to show that Kerr-McGee did not always comply with NRC regulations. One Kerr-McGee witness conceded that the amount of plutonium which was unaccounted for during the period in question exceeded permissible limits. [Footnote 5] 485 F. Supp. 566, 586 (WD Okla.1979). An NRC official testified that he did not feel that Kerr-McGee was conforming its conduct to the "as low as reasonably achievable" standard. [Footnote 6] Ibid. There was also some evidence that the level of plutonium in Silkwood's apartment may have exceeded that permitted in an unrestricted area such as a residence. Ibid. Page 464 U. S. 244However, there was also evidence that Kerr-McGee complied with most federal regulations. The NRC official testified that there were no serious personnel exposures at the plant, and that Kerr-McGee did not exceed the regulatory requirements with respect to exposure levels that would result in significant health hazards. In addition, Kerr-McGee introduced the Commission's report on the investigation of the Silkwood incident, in which the Commission determined that Kerr-McGee's only violation of regulations throughout the incident was its failure to maintain a record of the dates of two urine samples submitted by Silkwood.The trial court determined that Kerr-McGee had not shown that the contamination occurred during the course of Silkwood's employment. Accordingly, the court precluded the jury from deciding whether the personal injury claim was covered by Oklahoma's Workers' Compensation Act, which provides the sole remedy for accidental personal injuries arising in the course of employment. Okla.Stat., Tit. 85, §§ 11, 12 (1981). Instead, the court submitted the claims to the jury on alternative theories of strict liability and negligence. [Footnote 7]The court also instructed the jury with respect to punitive damages, explaining the standard by which Kerr-McGee's conduct was to be evaluated in determining whether such damages should be awarded:"[T]he jury may give damages for the sake of example and by way of punishment, if the jury finds the defendant or defendants have been guilty of oppression, fraud, or malice, actual or presumed. . . .""Exemplary damages are not limited to cases where there is direct evidence of fraud, malice or gross negligence. They may be allowed when there is evidence Page 464 U. S. 245 of such recklessness and wanton disregard of another's rights that malice and evil intent will be inferred. If a defendant is grossly and wantonly reckless in exposing others to dangers, the law holds him to have intended the natural consequences of his acts, and treats him as guilty of a willful wrong."485 F. Supp. at 603 (Appendix).The jury returned a verdict in favor of Mr. Silkwood, finding actual damages of $505,000 ($500,000 for personal injuries and $5,000 for property damage) and punitive damages of $10 million. The trial court entered judgment against Kerr-McGee in that amount.Kerr-McGee then moved for judgment n.o.v. or a new trial. In denying that motion, the court rejected Kerr-McGee's contention that compliance with federal regulations precluded an award of punitive damages. The court noted that Kerr-McGee"had a duty under part 20 of Title 10 of the Code of Federal Regulations to maintain the release of radiation 'as low as reasonably achievable.' Compliance with this standard cannot be demonstrated merely through control of escaped plutonium to within any absolute amount."Id. at 585. Therefore, the court concluded, it is not"inconsistent [with any congressional design] to impose punitive damages for the escape of plutonium caused by grossly negligent, reckless and willful conduct."Ibid.Kerr-McGee renewed its contentions with greater success before the Court of Appeals for the Tenth Circuit. That court, by decision of a split panel, affirmed in part and reversed in part. 667 F.2d 908 (1981). The court first held that recovery for Silkwood's personal injuries was controlled exclusively by Oklahoma's workers' compensation law. It thus reversed the $500,000 judgment for those injuries. The court then affirmed the property damage portion of the award, holding that the workers' compensation law applied only to personal injuries, and that Oklahoma law permitted an award under a theory of strict liability in the circumstances Page 464 U. S. 246 of this case. Finally, the court held that, because of the federal statutes regulating the Kerr-McGee plant, "punitive damages may not be awarded in this case," id. at 923.In reaching its conclusion with respect to the punitive damages award, the Court of Appeals adopted a broad preemption analysis. It concluded that"any state action that competes substantially with the AEC (NRC) in its regulation of radiation hazards associated with plants handling nuclear material"was impermissible. Ibid. Because"[a] judicial award of exemplary damages under state law as punishment for bad practices or to deter future practices involving exposure to radiation is not less intrusive than direct legislative acts of the state,"the court determined that such awards were preempted by federal law. Ibid.Mr. Silkwood appealed, seeking review of the Court of Appeals' ruling with respect to the punitive damages award. We noted probable jurisdiction and postponed consideration of the jurisdictional issue until argument on the merits. 459 U.S. 1101 (1983).IIWe first address the jurisdictional issue. This Court is empowered to review the decision of a federal court of appeals "by appeal [if] a State statute [is] held by [the] court of appeals to be invalid as repugnant to the Constitution. . . ." 28 U.S.C. § 1254(2). Mr. Silkwood argues that, because the Court of Appeals invalidated the punitive damages award on preemption grounds, and because the basis for that award was a state statute, Okla.Stat., Tit. 23, § 9 (1981), [Footnote 8] the Court of Appeals necessarily held that the state statute was unconstitutional, at least as applied in this case. Accordingly, Mr. Silkwood contends, this case falls within the confines of 28 U.S.C. § 1254(2). We disagree. Page 464 U. S. 247In keeping with the policy that statutes authorizing appeals are to be strictly construed, Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 460 U. S. 43 (1983); Fornaris v. Ridge Tool Co., 400 U. S. 41, 400 U. S. 42, n. 1 (1970), we have consistently distinguished between those cases in which a state statute is expressly struck down on constitutional grounds and those in which an exercise of authority under state law is invalidated without reference to the state statute. The former come within the scope of § 1254(2)'s jurisdictional grant. Malone v. White Motor Corp., 435 U. S. 497, 435 U. S. 499 (1978); Dutton v. Evans, 400 U. S. 74, 400 U. S. 76, n. 6 (1970). The latter do not. Perry Education Assn., supra, at 460 U. S. 42; Hanson v. Denckla, 357 U. S. 235, 357 U. S. 244 (1958); Wilson v. Cook, 327 U. S. 474, 327 U. S. 482 (1946). [Footnote 9] See also County of Arlington v. United States, 669 F.2d 925 (CA4), cert. denied, 459 U.S. 801 (1982); Minnesota v. Hoffman, 543 F.2d 1198 (CA8 1976), cert. denied sub nom. Minnesota v. Alexander, 430 U. S. 977 (1977). The present case falls into the second category.The Court of Appeals held that, because of the preemptive effect of federal law, "punitive damages may not be awarded in this case." 667 F.2d at 923. It did not purport to rule on the constitutionality of the Oklahoma punitive damages statute. The court did not mention the statute, and the parties did not contest or defend the constitutionality of the statute in their appellate briefs. While the award itself was struck down, the statute authorizing such awards was left untouched. Cf. Perry Education Assn., 460 U.S. at 460 U. S. 42. Therefore, the present appeal is not within our § 1254(2) appellate jurisdiction. [Footnote 10] Page 464 U. S. 248Nevertheless, the decision below is reviewable by writ of certiorari. Ibid. The issue addressed by the court below is important; it affects both the States' traditional authority to provide tort remedies to their citizens and the Federal Government's express desire to maintain exclusive regulatory authority over the safety aspects of nuclear power. Accordingly, treating the jurisdictional statement as a petition for certiorari, as we are authorized to do, 28 U.S.C. § 2103, we grant the petition and reach the merits of the Court of Appeals' ruling.IIIAs we recently observed in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U. S. 190 (1983), state law can be preempted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted. Id. at 461 U. S. 203-204; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 458 U. S. 153 (1982); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947). If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 373 U. S. 142-143 (1963), or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941). Pacific Gas & Electric, supra, at 461 U. S. 204. Kerr-McGee contends that the award in this case is invalid under either analysis. We consider each of these contentions in turn. Page 464 U. S. 249AIn Pacific Gas & Electric, an examination of the statutory scheme and legislative history of the Atomic Energy Act convinced us that"Congress . . . intended that the Federal Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant."461 U.S. at 461 U. S. 205. Thus, we concluded that"the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States."Id. at 461 U. S. 212.Kerr-McGee argues that our ruling in Pacific Gas & Electric is dispositive of the issue in this case. Noting that "regulation can be as effectively exerted through an award of damages as through some form of preventive relief," San Diego Building Trades Council v. Garmon, 359 U. S. 236, 359 U. S. 247 (1959), Kerr-McGee submits that, because the state-authorized award of punitive damages in this case punishes and deters conduct related to radiation hazards, it falls within the prohibited field. However, a review of the same legislative history which prompted our holding in Pacific Gas & Electric, coupled with an examination of Congress' actions with respect to other portions of the Atomic Energy Act, convinces us that the preempted field does not extend as far as Kerr-McGee would have it.As we recounted in Pacific Gas & Electric, "[u]ntil 1954, . . . the use, control, and ownership of nuclear technology remained a federal monopoly." 461 U.S. at 461 U. S. 206. In that year, Congress enacted legislation which provided for private involvement in the development of atomic energy. Atomic Energy Act of 1954, Act of Aug. 30, 1954, ch. 1073, 68 Stat. 919, as amended, 42 U.S.C. § 2011 et seq. (1976 ed. and Supp. V). However, the Federal Government retained extensive control over the manner in which this development occurred. In particular, the Atomic Energy Commission was given "exclusive jurisdiction to license the transfer, Page 464 U. S. 250 delivery, receipt, acquisition, possession, and use of nuclear materials." Pacific Gas & Electric, supra, at 461 U. S. 207. See 42 U.S.C. §§ 2014(e), (z), (aa), 2061-2064, 2071-2078, 2091-2099, 2111-2114 (1976 ed. and Supp. V).In 1959, Congress amended the Atomic Energy Act in order to"clarify the respective responsibilities . . . of the States and the Commission with respect to the regulation of byproduct, source, and special nuclear materials."42 U.S.C. § 2021(a)(1). See S.Rep. No. 870, 86th Cong., 1st Sess., 8-12 (1959). The Commission was authorized to turn some of its regulatory authority over to any State which would adopt a suitable regulatory program. However, the Commission was to retain exclusive regulatory authority over"the disposal of such . . . byproduct, source, or special nuclear material as the Commission determines . . . should, because of the hazards or potential hazards thereof, not be disposed of without a license from the Commission."42 U.S.C. § 2021(c)(4). The States were therefore still precluded from regulating the safety aspects of these hazardous materials. [Footnote 11]Congress' decision to prohibit the States from regulating the safety aspects of nuclear development was premised on its belief that the Commission was more qualified to determine what type of safety standards should be enacted in this complex area. As Congress was informed by the AEC, the 1959 legislation provided for continued federal control over the more hazardous materials because"the technical safety considerations are of such complexity that it is not likely that any State would be prepared to deal with them during the foreseeable future."H.R.Rep. No. 1125, 86th Cong., 1st Sess., 3 (1959). If there were nothing more, this concern over the States' inability to formulate effective standards and Page 464 U. S. 251 the foreclosure of the States from conditioning the operation of nuclear plants on compliance with state-imposed safety standards arguably would disallow resort to state law remedies by those suffering injuries from radiation in a nuclear plant. There is, however, ample evidence that Congress had no intention of forbidding the States to provide such remedies.Indeed, there is no indication that Congress even seriously considered precluding the use of such remedies either when it enacted the Atomic Energy Act in 1954 or when it amended it in 1959. This silence takes on added significance in light of Congress' failure to provide any federal remedy for persons injured by such conduct. It is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct. See Construction Workers v. Laburnum Corp., 347 U. S. 656, 347 U. S. 663-664 (1954).More importantly, the only congressional discussion concerning the relationship between the Atomic Energy Act and state tort remedies indicates that Congress assumed that such remedies would be available. After the 1954 law was enacted, private companies contemplating entry into the nuclear industry expressed concern over potentially bankrupting state law suits arising out of a nuclear incident. As a result, in 1957, Congress passed the Price-Anderson Act, an amendment to the Atomic Energy Act. Pub.L. 85-256, 71 Stat. 576. That Act established an indemnification scheme under which operators of licensed nuclear facilities could be required to obtain up to $60 million in private financial protection against such suits. The Government would then provide indemnification for the next $500 million of liability, and the resulting $560 million would be the limit of liability for any one nuclear incident.Although the Price-Anderson Act does not apply to the present situation, [Footnote 12] the discussion preceding its enactment Page 464 U. S. 252 and subsequent amendment [Footnote 13] indicates that Congress assumed that persons injured by nuclear accidents were free to utilize existing state tort law remedies. The Joint Committee Report on the original version of the Price-Anderson Act explained the relationship between the Act and existing state tort law as follows:"Since the rights of third parties who are injured are established by State law, there is no interference with the State law until there is a likelihood that the damages exceed the amount of financial responsibility required, together with the amount of the indemnity. At that point, the Federal interference is limited to the prohibition of making payments through the State courts and to prorating the proceeds available."S.Rep. No. 296, 85th Cong., 1st Sess., 9 (1957). See also H.R.Rep. No. 435, 85th Cong., 1st Sess., 9 (1957); S.Rep. No. 1605, 89th Cong., 2d Sess., 6 (1966).Congress clearly began working on the Price-Anderson legislation with the assumption that, in the absence of some subsequent legislative action, state tort law would apply. [Footnote 14] This was true even though Congress was fully aware of the Page 464 U. S. 253 Commission's exclusive regulatory authority over safety matters. As the Joint Committee explained in 1965:"The Price-Anderson Act also contained provisions to improve the AEC's procedures for regulating reactor licensees. . . . This manifested the continuing concern of the Joint Committee and Congress with the necessity for assuring the effectiveness of the national regulatory program for protecting the health and safety of employees and the public against atomic energy hazards. The inclusion of these provisions . . . also reflected the intimate relationship which existed between Congress' concern for prevention of reactor accidents and the indemnity provisions of the Price-Anderson legislation."S.Rep. No. 650, 89th Cong., 1st Sess., 4-5 (1965).When it enacted the Price-Anderson Act, Congress was well aware of the need for effective national safety regulation. In fact, it intended to encourage such regulation. But, at the same time, "the right of the State courts to establish the liability of the persons involved in the normal way [was] maintained." S.Rep. No. 296, supra, at 22.The belief that the NRC's exclusive authority to set safety standards did not foreclose the use of state tort remedies was reaffirmed when the Price-Anderson Act was amended in 1966. The 1966 amendment was designed to respond to concerns about the adequacy of state law remedies. See, e.g., S.Rep. No. 650, supra, at 13. It provided that, in the event of an "extraordinary nuclear occurrence," [Footnote 15] licensees could be required to waive any issue of fault, any charitable or governmental Page 464 U. S. 254 immunity defense, and any statute of limitations defense of less than 10 years. 42 U.S.C. § 2210(n)(1). Again, however, the importance of the legislation for present purposes is not so much in its substance as in the assumptions on which it was based.Describing the effect of the 1966 amendment, the Joint Committee stated:"By requiring potential defendants to agree to waive defenses the defendants' rights are restricted; concomitantly, to this extent, the rights of plaintiffs are enlarged. Just as the rights of persons who are injured are established by State law, the rights of defendants against whom liability is asserted are fixed by State law. What this subsection does is to authorize the [NRC] to require that defendants covered by financial protection and indemnity give up some of the rights they might otherwise assert."S.Rep. No. 1605, 89th Cong., 2d Sess., 26 (1966).Similarly, when the Committee outlined the rights of those injured in nuclear incidents which were not extraordinary nuclear occurrences, its reference point was again state law."Absent . . . a determination [that the incident is an 'extraordinary nuclear occurrence'], a claimant would have exactly the same rights that he has today under existing law -- including, perhaps, benefit of a rule of strict liability if applicable State law so provides."Id. at 12. Indeed, the entire discussion surrounding the 1966 amendment was premised on the assumption that state remedies were available notwithstanding the NRC's exclusive regulatory authority. For example, the Committee rejected a suggestion that it adopt a federal tort to replace existing state remedies, noting that such displacement of state remedies would engender great opposition. Hearings before the Joint Committee on Atomic Energy on Proposed Amendments to Price-Anderson Act Relating to Waiver of Defenses, 89th Cong., 2d Sess., 31, 75 (1966); S.Rep. No. 1605, supra, at 6-9. If other provisions Page 464 U. S. 255 of the Atomic Energy Act already precluded the States from providing remedies to its citizens, there would have been no need for such concerns. Other comments made throughout the discussion were similarly based on the assumption that state remedies were available. [Footnote 16]Kerr-McGee focuses on the differences between compensatory and punitive damages awards and asserts that, at most, Congress intended to allow the former. This argument, however, is misdirected, because our inquiry is not whether Congress expressly allowed punitive damages awards. Punitive damages have long been a part of traditional state tort law. As we noted above, Congress assumed that traditional principles of state tort law would apply with full force unless they were expressly supplanted. Thus, it is Kerr-McGee's burden to show that Congress intended to preclude such awards. See Electrical Workers v. Foust, 442 U. S. 42, 442 U. S. 53 (1979) (BLACKMUN, J., concurring in result). Yet, the company is unable to point to anything in the legislative history or in the regulations that indicates that punitive damages were not to be allowed. To the contrary, the regulations issued implementing the insurance provisions of the Price-Anderson Act themselves contemplate that punitive damages might be awarded under state law. [Footnote 17] Page 464 U. S. 256In sum, it is clear that, in enacting and amending the Price-Anderson Act, Congress assumed that state law remedies, in whatever form they might take, were available to those injured by nuclear incidents. This was so even though it was well aware of the NRC's exclusive authority to regulate safety matters. No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability. But as we understand what was done over the years in the legislation concerning nuclear energy, Congress intended to stand by both concepts and to tolerate whatever tension there was between them. We can do no less. It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept.We do not suggest that there could never be an instance in which the federal law would preempt the recovery of damages based on state law. But insofar as damages for radiation injuries are concerned, preemption should not be judged on the basis that the Federal Government has so completely occupied the field of safety that state remedies are foreclosed, but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law. We perceive no such conflict or frustration in the circumstances of this case. Page 464 U. S. 257BThe United States, as amicus curiae, contends that the award of punitive damages in this case is preempted because it conflicts with the federal remedial scheme, noting that the NRC is authorized to impose civil penalties on licensees when federal standards have been violated. 42 U.S.C. § 2282 (1976 ed. and Supp. V). However, the award of punitive damages in the present case does not conflict with that scheme. Paying both federal fines and state-imposed punitive damages for the same incident would not appear to be physically impossible. Nor does exposure to punitive damages frustrate any purpose of the federal remedial scheme.Kerr-McGee contends that the award is preempted because it frustrates Congress' express desire "to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes." 42 U.S.C. § 2013(d). In Pacific Gas & Electric, we observed that "[t]here is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear power." 461 U.S. at 461 U. S. 221. However, we also observed that "the promotion of nuclear power is not to be accomplished at all costs.'" Id. at 461 U. S. 222. Indeed, the provision cited by Kerr-McGee goes on to state that atomic energy should be developed and utilized only to the extent it is consistent "with the health and safety of the public." 42 U.S.C. § 2013(d). Congress therefore disclaimed any interest in promoting the development and utilization of atomic energy by means that fail to provide adequate remedies for those who are injured by exposure to hazardous nuclear materials. Thus, the award of punitive damages in this case does not hinder the accomplishment of the purpose stated in § 2013(d).We also reject Kerr-McGee's submission that the punitive damages award in this case conflicts with Congress' express intent to preclude dual regulation of radiation hazards. See S.Rep. No. 870, 86th Cong., 1st Sess., 8 (1959). As we Page 464 U. S. 258 explained in 464 U. S. Congress did not believe that it was inconsistent to vest the NRC with exclusive regulatory authority over the safety aspects of nuclear development while at the same time allowing plaintiffs like Mr. Silkwood to recover for injuries caused by nuclear hazards. We are not authorized to second-guess that conclusion. [Footnote 18]IVWe conclude that the award of punitive damages in this case is not preempted by federal law. On remand, Kerr-McGee is free to reassert any claims it made before the Court of Appeals which were not addressed by that court or by this opinion, including its contention that the jury's findings with respect to punitive damages were not supported by sufficient evidence and its argument that the amount of the punitive damages award was excessive. The judgment of the Court of Appeals with respect to punitive damages is therefore reversed, and the case is remanded to that court for proceedings consistent with this opinion.It is so ordered | U.S. Supreme CourtSilkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)Silkwood v. Kerr-McGee Corp.No. 81-2159Argued October 4, 1983Decided January 11, 1984464 U.S. 238SyllabusAppellant's decedent, a laboratory analyst at a federally licensed nuclear plant in Oklahoma operated by appellee Kerr-McGee Nuclear Corp. (hereafter appellee), was contaminated by plutonium. Subsequently, after the decedent was killed in an unrelated automobile accident, appellant, as administrator of the decedent's estate, brought a diversity action in Federal District Court based on common law tort principles under Oklahoma law to recover for the contamination injuries to the decedent's person and property. The jury returned a verdict in appellant's favor, awarding, in addition to actual damages, punitive damages as authorized by Oklahoma law. The Court of Appeals, inter alia, reversed as to the punitive damages award on the ground that such damages were preempted by federal law.Held:1. The appeal is not within this Court's appellate jurisdiction under 28 U.S.C. § 1254(2). The Court of Appeals held that, because of the preemptive effect of federal law, punitive damages could not be awarded. It did not purport to rule on the constitutionality of the Oklahoma punitive damages statute, which was left untouched. The decision, however, is reviewable by writ of certiorari. Pp. 464 U. S. 246-248.2. The award of punitive damages is not preempted by federal law. Pp. 464 U. S. 248-258.(a) The federal preemption of state regulation of the safety aspects of nuclear energy, see Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U. S. 190, does not extend to the state-authorized award of punitive damages for conduct related to radiation hazards. There is ample evidence that Congress had no intention, when it enacted and later amended the Atomic Energy Act of 1954, of forbidding the States to provide remedies for those suffering injuries from radiation in a nuclear plant. Nor is appellee able to point to anything in the legislative history of the Price-Anderson Act -- which established an indemnification scheme for operators of nuclear facilities -- or in the implementing regulations that indicates that punitive damages were not to be allowed. Rather, it is clear Page 464 U. S. 239 that, in enacting and amending the Price-Anderson Act, Congress assumed that state law remedies were available to those injured by nuclear incidents, even though Congress was aware of the Nuclear Regulatory Commission's exclusive authority to regulate safety matters. Insofar as damages for radiation injuries are concerned, preemption should not be judged on the basis that the Federal Government has so completely occupied the field of safety that state remedies are foreclosed, but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law. Pp. 464 U. S. 249-256.(b) The award of punitive damages in this case does not conflict with the federal remedial scheme under which the NRC is authorized to impose civil penalties on licensees for violation of federal standards. Paying both federal fines and state-imposed punitive damages for the same incident is not physically impossible, nor does exposure to punitive damages frustrate any purpose of the federal remedial scheme. The award of punitive damages does not hinder the purpose of 42 U.S.C. § 2013(d) "to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes," since Congress disclaimed any interest in accomplishing this purpose by means that fail to provide adequate remedies to those injured by exposure to hazardous nuclear materials. Finally, the punitive damages award does not conflict with Congress' intent to preclude dual regulation of radiation hazards, since, as indicated above, Congress did not believe that it was inconsistent to vest the NRC with exclusive regulatory authority over the safety aspects of nuclear development while at the same time allowing plaintiffs like appellant to recover for injuries caused by nuclear hazards. Pp. 464 U. S. 257-258.667 F.2d 908, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BRENNAN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 464 U. S. 258. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and MARSHALL and BLACKMUN, JJ., joined, post, p. 464 U. S. 274. Page 464 U. S. 240 |
395 | 1998_98-405 | of raising concerns about § 5's constitutionality, see Miller v. Johnson, 515 U. S. 900, 926-927. The Court's resolution of this issue renders it unnecessary to address appellants' challenge to the District Court's factual conclusion that there was no evidence of discriminatory but nonretrogressive intent. Pp. 328-336.(b) The Court rejects appellants' contention that, notwithstanding that Bossier Parish I explicitly "le[ft] open for another day" the question whether § 5 extends to discriminatory but nonretrogressive intent, 520 U. S., at 486, two of this Court's prior decisions have already reached the conclusion that it does. Dictum in Beer, supra, at 141, and holding of Pleasant Grove v. United States, 479 U. S. 462, distinguished. Pp. 337-341.7 F. Supp. 2d 29, affirmed.SCALIA, J., delivered the opinion of the Court, Part II of which was unanimous, and Parts I, III, and IV of which were joined by REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ. THOMAS, J., filed a concurring opinion, post, p. 341. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 341. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, post, p. 373. BREYER, J., filed a dissenting opinion, post, p. 374.Paul R. Q. Wolfson reargued the cause for appellant in No. 98-405. On the briefs on reargument was Solicitor General Waxman. With Mr. Wolfson on the briefs on the original argument were Mr. Waxman, Acting Assistant Attorney General Lee, Deputy Solicitor General Underwood, Mark L. Gross, and Louis E. Peraertz.Patricia A. Brannan reargued the cause for appellants in No. 98-406. With her on the briefs were John W Borkowski, Barbara R. Arnwine, Thomas J. Henderson, and Edward Still.Michael A. Carvin reargued the cause for appellee in both cases. With him on the brief were David H. Thompson, Craig S. Lerner, and Michael E. Rosman.JUSTICE SCALIA delivered the opinion of the Court.These cases present the question whether § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C.323§ 1973c, prohibits preclearance of a redistricting plan enacted with a discriminatory but nonretrogressive purpose.IThis is the second time the present cases are before us, and we thus recite the facts and procedural history only in brief. Like every other political subdivision of the State of Louisiana, Bossier Parish, because of its history of discriminatory voting practices, is a jurisdiction covered by § 5 of the Voting Rights Act. See 42 U. S. C. §§ 1973c, 1973b(a), (b); 30 Fed. Reg. 9897 (1965). It is therefore prohibited from enacting any change in a "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting," without first obtaining either administrative preclearance from the Attorney General or judicial preclearance from the United States District Court for the District of Columbia. 42 U. S. C. § 1973c.Bossier Parish is governed by a 12-member Police Jury elected from single-member districts for 4-year terms. In the early 1990's, the Police Jury set out to redraw its electoral districts in order to account for demographic changes reflected in the decennial census. In 1991, it adopted a redistricting plan which, like the plan then in effect, contained no majority-black districts, although blacks made up approximately 20% of the parish's population. On May 28, 1991, the Police Jury submitted its new districting plan to the Attorney General; two months later, the Attorney General granted preclearance.The Bossier Parish School Board (Board) is constituted in the same fashion as the Police Jury, and it too undertook to redraw its districts after the 1990 census. During the course of that redistricting, appellant-intervenor George Price, president of the local chapter of the National Association for the Advancement of Colored People (NAACP), proposed that the Board adopt a plan with majority-black districts. In the fall of 1992, amid some controversy, the324Board rejected Price's suggestion and adopted the Police Jury's 1991 redistricting plan as its own.On January 4, 1993, the Board submitted its redistricting plan to the Attorney General for preclearance. Although the Attorney General had precleared the identical plan when submitted by the Police Jury, she interposed a formal objection to the Board's plan, asserting that "new information"-specifically, the NAACP plan proposed by appellantintervenor Price-demonstrated that "black residents are sufficiently numerous and geographically compact so as to constitute a majority in two single-member districts." App. to Juris. Statement in No. 98-405, p. 235a. The Attorney General disclaimed any attempt to compel the Board to "adopt any particular plan," but maintained that the Board was "not free to adopt a plan that unnecessarily limits the opportunity for minority voters to elect their candidates of choice." Ibid.After the Attorney General denied the Board's request for reconsideration, the Board filed the present action for judicial preclearance of the 1992 plan in the United States District Court for the District of Columbia. Section 5 of the Voting Rights Act authorizes preclearance of a proposed voting change that "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U. S. C. § 1973c. Before the District Court, appellants conceded that the Board's plan did not have a prohibited "effect" under § 5, since it did not worsen the position of minority voters. (In Beer v. United States, 425 U. S. 130 (1976), we held that a plan has a prohibited "effect" only if it is retrogressive.) Instead, appellants made two distinct claims. First, they argued that preclearance should be denied because the Board's plan, by not creating as many majority-black districts as it should create, violated § 2 of the Voting Rights Act, which bars discriminatory voting practices. Second, they contended that,325although the Board's plan would have no retrogressive effect, it nonetheless violated § 5 because it was enacted for a discriminatory "purpose."The District Court granted preclearance. Bossier Parish School Bd. v. Reno, 907 F. Supp. 434 (DC 1995). As to the first of appellants' two claims, the District Court held that it could not deny preclearance of a proposed voting change under § 5 simply because the change violated § 2. Moreover, in order to prevent the Government "[from doing] indirectly what it cannot do directly," the District Court stated that it would "not permit section 2 evidence to prove discriminatory purpose under section 5." Id., at 445. As to the second of appellants' claims, the District Court concluded that the Board had borne its burden of proving that the 1992 plan was adopted for two legitimate, nondiscriminatory purposes: to assure prompt preclearance (since the identical plan had been precleared for the Police Jury), and to enable easy implementation (since the adopted plan, unlike the NAACP's proposed plan, required no redrawing of precinct lines). Id., at 447. Appellants filed jurisdictional statements in this Court, and we noted probable jurisdiction. Reno v. Bossier Parish School Bd., 517 U. S. 1232 (1996).On appeal, we agreed with the District Court that a proposed voting change cannot be denied preclearance simply because it violates § 2, but disagreed with the proposition that all evidence of a dilutive (but nonretrogressive) effect forbidden by § 2 was irrelevant to whether the Board enacted the plan with a retrogressive purpose forbidden by § 5. Reno v. Bossier Parish School Bd., 520 U. S. 471, 486-487 (1997) (Bossier Parish I). Since some language in the District Court's opinion left us uncertain whether the court had in fact applied that proposition in its decision, we vacated and remanded for further proceedings as to the Board's purpose in adopting the 1992 plan. Id., at 486. In light of our disposition, we left open the additional question "whether326the § 5 purpose inquiry ever extends beyond the search for retrogressive intent." Ibid. "The existence of such a purpose," we said, "and its relevance to § 5, are issues to be decided on remand." Ibid.On remand, the District Court, in a comparatively brief opinion relying on, but clarifying, its extensive earlier opinion, again granted preclearance. 7 F. Supp. 2d 29 (DC 1998). First, in response to our invitation to address the existence of a discriminatory but nonretrogressive purpose, the District Court summarily concluded that "the record will not support a conclusion that extends beyond the presence or absence of retrogressive intent." Id., at 31. It noted that one could "imagine a set of facts that would establish a 'nonretrogressive, but nevertheless discriminatory, purpose,' but those imagined facts are not present here." Ibid. The District Court therefore left open the question that we had ourselves left open on remand: namely, whether the § 5 purpose inquiry extends beyond the search for retrogressive intent.Second, the District Court considered, at greater length, how any dilutive impact of the Board's plan bore on the question whether the Board enacted the plan with a retrogressive intent. It concluded, applying the multifactor test we articulated in Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252 (1977), that allegations of dilutive effect and of discriminatory animus were insufficient to establish retrogressive intent. 7 F. Supp. 2d, at 31-32.In their jurisdictional statements in this Court, appellants contended, first, that the District Court's conclusion that there was no evidence of discriminatory but nonretrogressive purpose was clearly erroneous, and second, that § 5 of the Voting Rights Act prohibits preclearance of a redistricting plan enacted with a discriminatory but nonretrogressive purpose. Appellants did not challenge the District Court's determination that there was no evidence of retrogressive intent. We again noted probable jurisdiction. 525 U. S. 1118 (1999).327IIBefore proceeding to the merits, we must dispose of a challenge to our jurisdiction. The Board contends that these cases are now moot, since its 1992 plan "will never again be used for any purpose." Motion to Dismiss or Affirm 9. Under Louisiana law, school board members are elected to serve 4-year terms. La. Rev. Stat. Ann. § 17:52(A) (West 1995). One month after appellants filed the jurisdictional statements for this appeal, the scheduled 1998 election for the Board took place. The next scheduled election will not occur until 2002, by which time, as appellants concede, the data from the upcoming decennial census will be available and the Board will be required by our "one-man-one-vote" precedents to have a new apportionment plan in place. Accordingly, appellee argues, the District Court's declaratory judgment with respect to the 1992 plan is no longer of any moment and the dispute no longer presents a live "case or controversy" for purposes of Article III of the Constitution. Preiser v. Newkirk, 422 U. S. 395, 401 (1975); Mills v. Green, 159 U. S. 651, 653 (1895).Appellants posit several contingencies in which the Board's 1992 plan would be put to use-including resignation or death of one of the 12 Board members before 2002, and failure to agree upon a replacement plan for the 2002 election. They also assert that, if we were to hold preclearance improper, they "could seek" an injunction voiding the elections held under the 1992 plan and ordering a special election, Brief for Appellants Price et al. Opposing Motion to Dismiss or Affirm 3, and "might be entitled" to such an injunction, Brief for Appellant Reno in Opposition to Motion to Dismiss or Affirm 2. We need not pause to consider whether the possibility of these somewhat speculative and uncertain events suffices to keep these cases alive, since in at least one respect the 1992 plan will have probable continuing effect: Absent a successful subsequent challenge under § 2, it, rather than the 1980 predecessor plan-which contains quite328different voting districts-will serve as the baseline against which appellee's next voting plan will be evaluated for the purposes of preclearance. Whether (and precisely how) that future plan represents a change from the baseline, and, if so, whether it is retrogressive in effect, will depend on whether preclearance of the 1992 plan was proper.We turn, then, to the merits.IIIAppellants press the two claims initially raised in their jurisdictional statements: first, that the District Court's factual conclusion that there was no evidence of discriminatory but nonretrogressive intent was clearly erroneous, and second, that § 5 of the Voting Rights Act prohibits preclearance of a redistricting plan enacted with a discriminatory but nonretrogressive purpose. Our resolution of the second claim renders it unnecessary to address the first. When considered in light of our longstanding interpretation of the "effect" prong of § 5 in its application to vote-dilution claims, the language of § 5 leads to the conclusion that the "purpose" prong of § 5 covers only retrogressive dilution.As noted earlier, in order to obtain preclearance under § 5, a covered jurisdiction must demonstrate that the proposed 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." 42 U. S. C. § 1973c. A covered jurisdiction, therefore, must make two distinct showings: first, that the proposed change "does not have the purpose ... of denying or abridging the right to vote on account of race or color," and second, that the proposed change "will not have the effect of denying or abridging the right to vote on account of race or color." The covered jurisdiction bears the burden of persuasion on both points. See Bossier Parish I, 520 U. S., at 478 (judicial preclearance); 28 CFR § 51.52(a) (1999) (administrative preclearance).329In Beer v. United States, 425 U. S. 130 (1976), this Court addressed the meaning of the no-effect requirement in the context of an allegation of vote dilution. The case presented the question whether a reapportionment plan that would have a discriminatory but nonretrogressive effect on the rights of black voters should be denied preclearance. Reasoning that § 5 must be read in light of its purpose of "insur[ing] that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise," we held 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." Id., at 141. In other words, we concluded that, in the context of a § 5 challenge, the phrase "denying or abridging the right to vote on account of race or color" -or more specifically, in the context of a vote-dilution claim, the phrase "abridging the right to vote on account of race or color"-limited the term it qualified, "effect," to retrogressive effects.Appellants contend that in qualifying the term "purpose," the very same phrase does not impose a limitation to retrogression-i. e., that the phrase "abridging the right to vote on account of race or color" means retrogression when it modifies "effect," but means discrimination more generally when it modifies "purpose." We think this is simply an untenable construction of the text, in effect recasting the phrase "does not have the purpose and will not have the effect of x" to read "does not have the purpose of y and will not have the effect of x." As we have in the past, we refuse to adopt a construction that would attribute different meanings to the same phrase in the same sentence, depending on which object it is modifying. See BankAmerica Corp. v. United States, 462 U. S. 122, 129 (1983) (declining to give330different meanings to the phrase "other than" when it modified "banks" and "common carriers" in the same clause).Appellants point out that we did give the purpose prong of § 5 a broader meaning than the effect prong in Richmond v. United States, 422 U. S. 358 (1975). That case involved requested preclearance for a proposed annexation that would have reduced the black population of the city of Richmond, Virginia, from 52% to 42%. We concluded that, although the annexation may have had the effect of creating a political unit with a lower percentage of blacks, so long as it "fairly reflect[ed] the strength of the Negro community as it exist[ed] after the annexation" it did not violate § 5. Id., at 371. We reasoned that this interpretation of the effect prong of § 5 was justified by the peculiar circumstances presented in annexation cases:"To hold otherwise would be either to forbid all such annexations or to require, as the price for approval of the annexation, that the black community be assigned the same proportion of council seats as before, hence perhaps permanently overrepresenting them and underrepresenting other elements in the community, including the nonblack citizens in the annexed area. We are unwilling to hold that Congress intended either consequence in enacting § 5." Ibid.We refused, however, to impose a similar limitation on § 5's purpose prong, stating that preclearance could be denied when the jurisdiction was acting with the purpose of effecting a percentage reduction in the black population, even though it could not be denied when the jurisdiction's action merely had that effect. Id., at 378-379.It must be acknowledged that Richmond created a discontinuity between the effect and purpose prongs of § 5. We regard that, however, as nothing more than an ex necessitate limitation upon the effect prong in the particular context of annexation-to avoid the invalidation of all annexations of331areas with a lower proportion of minority voters than the annexing unit. The case certainly does not stand for the proposition that the purpose and effect prongs have fundamentally different meanings-the latter requiring retrogression, and the former not-which is what is urged here. The approved effect of the redistricting in Richmond, and the hypothetically disapproved purpose, were both retrogressive. We found it necessary to make an exception to normal retrogressive-effect principles, but not to normal retrogressive-purpose principles, in order to permit routine annexation. That sheds little light upon the issue before us here.Appellants' only textual justification for giving the purpose and effect prongs different meanings is that to do otherwise "would reduce the purpose prong of Section 5 to a trivial matter," Brief for Federal Appellant on Reargument 13; would "effectively delet[e] the 'purpose' prong," Reply Brief for Appellants Price et al. on Reargument 3; and would give the purpose prong "a trivial reach, limited to the case of the incompetent retrogressor," Reply Brief for Federal Appellant 9. If this were true-and if it were adequate to justify giving the very same words a different meaning when qualifying "purpose" than when qualifying "effect" -one would expect appellants to cite at least some instances in which this Court applied such muscular construction to the innumerable statutes barring conduct with a particular "purpose or effect." See, e. g., 7 U. S. C. § 192(d) (prohibiting sale of any article "for the purpose or with the effect of manipulating or controlling prices" in the meatpacking industry); 12 U. S. C. § 1467a(c)(1)(A) (barring savings and loan holding companies from engaging in any activity on behalf of a savings association subsidiary "for the purpose or with the effect of evading any law or regulation applicable to such savings association"); 47 U. S. C. § 541(b)(3)(B) (1994 ed., Supp. III) (prohibiting cable franchising authorities from imposing any requirement that "has332the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service by a cable operator or an affiliate thereof"). They cite not a single one, and we are aware of none.It is true enough that, whenever Congress enacts a statute that bars conduct having "the purpose or effect of x," the purpose prong has application entirely separate from that of the effect prong only with regard to unlikely conduct that has "the purpose of x" but fails to have "the effect of x"in the present context, the conduct of a so-called "incompetent retrogressor." The purpose prong has value and effect, however, even when it does not cover additional conduct. With regard to conduct that has both "the purpose of x" and "the effect of x," the Government need only prove that the conduct at issue has "the purpose of x" in order to prevail. In the specific context of § 5, where the covered jurisdiction has the burden of persuasion, the Government need only refute the covered jurisdiction's prima facie showing that a proposed voting change does not have a retrogressive purpose in order for preclearance to be denied. When it can do so, it is spared the necessity of countering the jurisdiction's evidence regarding actual retrogressive effect-which, in vote-dilution cases, is often a complex undertaking. This advantage, plus the ability to reach malevolent incompetence, may not represent a massive addition to the effect prong, but it is enough to justify the separate existence of the purpose prong in this statute, and is no less than what justifies the separate existence of such a provision in many other laws.1IJUSTICE SOUTER criticizes us for "assum[ing] that purpose is easier to prove than effect ... in voting rights cases." Post, at 358, n. 10 (opinion concurring in part and dissenting in part). As is obvious from our discussion in text, we do not suggest that purpose is always easier to prove, but simply that it may sometimes be (which suffices to give force to the "purpose" prong without the necessity of doing violence to the English language). Indeed, JUSTICE SOUTER acknowledges that "intent to dilute is conceptually simple, whereas a dilutive abridgment-in-fact is not readily defined and identified independently of dilutive intent." Post, at 367.333At bottom, appellants' disagreement with our reading of § 5 rests not upon textual analysis, but upon their opposition to our holding in Beer. Although they do not explicitly contend that Beer should be overruled, they all but do so by arguing that it would be "untenable" to conclude (as we did in Beer) that the phrase "abridging the right to vote on account of race or color" refers only to retrogression in § 5, Reply Brief for Federal Appellant on Reargument 1, in light of the fact that virtually identical language elsewhere in the Voting Rights Act-and indeed, in the Fifteenth Amendment-has never been read to refer only to retrogression. See § 2(a) of the Voting Rights Act, 42 U. S. C. § 1973(a) ("No voting [practice] shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color ... "); u. S. Const., Arndt. 15, § 1 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude").2 The term "abridge," however-whose2 Appellants also cite § 3(c) of the Voting Rights Act, which provides, with regard to a court that has found a violation of the right to vote guaranteed by the Fourteenth or Fifteenth Amendment, that "the court ... shall retain jurisdiction for such period as it may deem appropriate and during such period no voting [practice] different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such [practice] does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color .... " 42 U. S. C. § 1973a(c). This provision does not assist appellants' case because it is not at all clear that it confers the power to deny approval to nonretrogressive redistricting. That is to say, it may well contemplate that, once a court has struck down an unconstitutional practice and granted relief with regard to that practice, it may assume for that jurisdiction a function identical to that of the District Court for the District of Columbia in § 5 preclearance proceedings. This is suggested by the fact that the State may avoid the court's jurisdiction in this regard by obtaining preclearance from the Attorney General; and that § 3(c), like § 5, explicitly leaves open the possibility that a proposed change approved by the court can be challenged as unconstitutional334core meaning is "shorten," see Webster's New International Dictionary 7 (2d ed. 1950); American Heritage Dictionary 6 (3d ed. 1992)-necessarily entails a comparison. It makes no sense to suggest that a voting practice "abridges" the right to vote without some baseline with which to compare the practice. In § 5 preclearance proceedings-which uniquely deal only and specifically with changes in voting procedures-the baseline is the status quo that is proposed to be changed: If the change "abridges the right to vote" relative to the status quo, preclearance is denied, and the status quo (however discriminatory it may be) remains in effect. In § 2 or Fifteenth Amendment proceedings, by contrast, which involve not only changes but (much more commonly) the status quo itself, the comparison must be made with a hypothetical alternative: If the status quo "results in [an] abridgement of the right to vote" or "abridge[s] [the right to vote]" relative to what the right to vote ought to be, the status quo itself must be changed. Our reading of "abridging" as referring only to retrogression in § 5, but to discrimination more generally in § 2 and the Fifteenth Amendment, is faithful to the differing contexts in which the term is used.3in a "subsequent action." Ibid. We of course intimate no holding on this point, but limit our conclusion to the nonprobative character of § 3(c) with regard to the issue in the present cases.3 Even if § 5 did not have a different baseline than the Fifteenth Amendment, appellants' argument that § 5 should be read in parallel with the Fifteenth Amendment would fail for the simple reason that we have never held that vote dilution violates the Fifteenth Amendment. See Voinovich v. Quilter, 507 U. S. 146, 159 (1993) (citing Beer v. United States, 425 U. S. 130, 142-143, n. 14 (1976)). Indeed, contrary to JUSTICE SOUTER'S assertion, post, at 360, n. 11 (opinion concurring in part and dissenting in part), we have never even "suggested" as much. Gomillion v. Lightfoot, 364 U. S. 339 (1960), involved a proposal to redraw the boundaries of Tuskegee, Alabama, so as to exclude all but 4 or 5 of its 400 black voters without excluding a single white voter. See id., at 341. Our conclusion that the proposal would deny black voters the right to vote in municipal elections, and therefore violated the Fifteenth Amendment, had nothing to do with racial vote dilution, a concept that does not appear in335In another argument that applies equally to our holding in Beer, appellants object that our reading of § 5 would require the District Court or Attorney General to preclear proposed voting changes with a discriminatory effect or purpose, or even with both. That strikes appellants as an inconceivable prospect only because they refuse to accept the limited meaning that we have said preclearance has in the vote-dilution context. It does not represent approval of the voting change; it is nothing more than a determination that the voting change is no more dilutive than what it replaces, and therefore cannot be stopped in advance under the extraordinary burden-shifting procedures of § 5, but must be attacked through the normal means of a § 2 action. As we have repeatedly noted, in vote-dilution cases § 5 prevents nothing but backsliding, and preclearance under § 5 affirms nothing but the absence of backsliding. Bossier Parish I, 520 U. S., at 478; Miller v. Johnson, 515 U. S. 900, 926 (1995); Beer, 425 U. S., at 141.4 This explains why theour voting-rights opinions until nine years later. See Allen v. State Bd. of Elections, 393 U. S. 544, 569 (1969). As for the other case relied upon by JUSTICE SOUTER, the plurality opinion in Mobile v. Bolden, 446 U. S. 55 (1980), not only does that not suggest that the Fifteenth Amendment covers vote dilution, it suggests the opposite, rejecting the appellees' vote-dilution claim in the following terms: "The answer to the appellees' argument is that ... their freedom to vote has not been denied or abridged by anyone. The Fifteenth Amendment does not entail the right to have Negro candidates elected .... Having found that Negroes in Mobile 'register and vote without hindrance,' the District Court and Court of Appeals were in error in believing that the appellants invaded the protection of that Amendment in the present case." Id., at 65; see also id., at 84, n. 3 (STEVENS, J., concurring in judgment) (characterizing plurality opinion as concluding that "the Fifteenth Amendment applies only to practices that directly affect access to the ballot").4 In search of support for the argument that § 5 prevents not just backsliding on vote dilution but all forms of vote dilution, JUSTICE SOUTER embarks upon a lengthy expedition into legislative history. Post, at 362367 (opinion concurring in part and dissenting in part). He returns emptyhanded, since he can point to nothing suggesting that the Congress thought § 5 covered both retrogressive and nonretrogressive dilution. Indeed, it is doubtful whether the Congress that passed the 1965 Voting336sole consequence of failing to obtain preclearance is continuation of the status quo. To deny preclearance to a plan that is not retrogressive-no matter how unconstitutional it may be-would risk leaving in effect a status quo that is even worse. For example, in the case of a voting change with a discriminatory but nonretrogressive purpose and a discriminatory but ameliorative effect, the result of denying preclearance would be to preserve a status quo with more discriminatory effect than the proposed change.In sum, by suggesting that § 5 extends to discriminatory but nonretrogressive vote-dilutive purposes, appellants ask us to do what we declined to do in Bossier Parish I: to blur the distinction between § 2 and § 5 by "shift[ing] the focus of § 5 from nonretrogression to vote dilution, and ... chang[ing] the § 5 benchmark from a jurisdiction's existing plan to a hypothetical, undiluted plan." 520 U. S., at 480. Such a reading would also exacerbate the "substantial" federalism costs that the preclearance procedure already exacts, Lopez v. Monterey County, 525 U. S. 266, 282 (1999), perhaps to the extent of raising concerns about § 5's constitutionality, see Miller, supra, at 926-927. Most importantly, however, in light of our holding in Beer, appellants' reading finds no support in the language of § 5.5Rights Act even had the practice of racial vote dilution in mind. As JusTICE SOUTER acknowledges, this Court did not address the concept until 1969, see post, at 364, n. 13, and the legislative history of the 1969 extension of the Act, quoted by JUSTICE SOUTER, see post, at 364-365, refers to at-large elections and consolidation of counties as "new, unlawful ways to diminish the Negroes' franchise" developed since passage of the Act. H. R. Rep. No. 91-397, pp. 6-7 (1969).5 JUSTICE SOUTER asserts that "[t]he Justice Department's longstanding practice of refusing to preclear changes that it determined to have an unconstitutionally discriminatory purpose, both before and after Beer," is entitled to deference. Post, at 368 (opinion concurring in part and dissenting in part); accord, post, at 373 (STEVENS, J., dissenting). But of course before Beer the Justice Department took the position that even the effects prong was not limited, in redistricting cases, to retrogression. Indeed, that position had been the basis for its denial of preclearance in337IVNotwithstanding the fact that Bossier Parish I explicitly "le[ft] open for another day" the question whether § 5 extends to discriminatory but nonretrogressive intent, see 520 U. S., at 486, appellants contend that two of this Court's prior decisions have already reached the conclusion that it does. First, appellants note that, in Beer, this Court stated 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. Appellants contend that this suggests that, at least in some cases in which the covered jurisdiction acts with a discriminatory but nonretrogressive dilutive purpose, the covered jurisdiction should be denied preclearance because it is acting unconstitutionally.We think that a most implausible interpretation. At the time Beer was decided, it had not been established that discriminatory purpose as well as discriminatory effect was necessary for a constitutional violation, compare White v. Regester, 412 U. S. 755, 765-766 (1973), with Washington v. Davis, 426 U. S. 229, 238-245 (1976). If the statement in Beer had meant what appellants suggest, it would either have been anticipating (without argument) that later holding, or else would have been gutting Beer's holding (since a showing of discriminatory but nonretrogressive effect would have been a constitutional violation and would, despite the holding of Beer, have sufficed to deny preclearance). A much more plausible explanation of the statement is that it referred to a constitutional violation other than vote dilu-Beer, see 425 U. S., at 136, and was argued in its brief before us as the basis for sustaining the District Court's denial, see Brief for United States in Beer v. United States, O. T. 1975, No. 73-1869, pp. 17-18. We rejected that position as to the effects prong, and there is even more reason to reject it in the present cases, whose outcomes depend as much upon the implication of one of our prior cases (as to which we owe the Department no deference) as upon a raw interpretation of the statute.338tion-and, more specifically, a violation consisting of a "denial" of the right to vote, rather than an "abridgement." Although in the context of denial claims, no less than in the context of abridgment claims, the antibacksliding rationale for § 5 (and its effect of avoiding preservation of an even worse status quo) suggests that retrogression should again be the criterion, arguably in that context the word "deny" (unlike the word "abridge") does not import a comparison with the status quo.6In any event, it is entirely clear that the statement in Beer was pure dictum: The Government had made no contention that the proposed reapportionment at issue was unconstitutional. 425 U. S., at 142, n. 14. And though we have quoted the dictum in subsequent cases, we have never actually applied it to deny preclearance. See Bossier Parish I, supra, at 481; Shaw v. Hunt, 517 U. S. 899, 912 (1996) (Shaw II); Miller, 515 U. S., at 924. We have made clear, on the other hand, what we reaffirm today: that proceedings to preclear apportionment schemes and proceedings to consider the constitutionality of apportionment schemes are entirely distinct."Although the Court concluded that the redistricting scheme at issue in Beer was nonretrogressive, it6 JUSTICE BREYER suggests that "[i]t seems obvious ... that if Mississippi had enacted its 'moral character' requirement in 1966 (after enactment of the Voting Rights Act), a court applying § 5 would have found 'the purpose ... of denying or abridging the right to vote on account of race,' even if Mississippi had intended to permit, say, 0.4%, rather than 0.3%, of the black voting age population of Forrest County to register." Post, at 376 (dissenting opinion). As we note above, however, our holding today does not extend to violations consisting of an outright "denial" of an individual's right to vote, as opposed to an "abridgement" as in dilution cases. In any event, if Mississippi had attempted to enact a "moral character" requirement in 1966, it would have been precluded from doing so under § 4, which bars certain types of voting tests and devices altogether, and the issue of § 5 preclearance would therefore never have arisen. See 42 U. S. C. §§ 1973b(a)(1), (c).339did not hold that the plan, for that reason, was immune from constitutional challenge .... Indeed, the Voting Rights Act and our case law make clear that a reapportionment plan that satisfies § 5 still may be enjoined as unconstitutional." Shaw v. Reno, 509 U. S. 630, 654 (1993) (Shaw I) (emphasis added).See also City of Lockhart v. United States, 460 U. S. 125, 134 (1983) (describing the holding of Beer as follows: "Although the new plan may have remained discriminatory, it nevertheless was not a regressive change .... Since the new plan did not increase the degree of discrimination against blacks, it was entitled to § 5 preclearance"); Allen v. State Bd. of Elections, 393 U. S. 544, 549-550 (1969) ("Once the State has successfully complied with the § 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality ... "). As we noted in Shaw I, § 5 explicitly states that neither administrative nor judicial preclearance "'shall bar a subsequent action to enjoin enforcement' of [a change in voting practice]." 509 U. S., at 654 (quoting 42 U. S. C. § 1973c). That fully available remedy leaves us untroubled by the possibility that § 5 could produce preclearance of an unconstitutionally dilutive redistricting plan.Second, appellants contend that we denied preclearance on the basis of a discriminatory but nonretrogressive purpose in Pleasant Grove v. United States, 479 U. S. 462 (1987). That case involved an unusual fact pattern. The city of Pleasant Grove, Alabama-which, at the time of the District Court's decision, had 32 black inhabitants, none of whom was registered to vote and of whose existence city officials appear to have been unaware, id., at 465, n. 2sought to annex two parcels of land, one inhabited by a few whites, and the other vacant but likely to be inhabited by whites in the near future. We upheld the District Court's conclusion that the city acted with a discriminatory purpose in annexing the land, rejecting the city's contention340that it could not have done so because it was unaware of the existence of any black voters against whom it could have intended to discriminate:"[The city's] argument is based on the incorrect assumption that an impermissible purpose under § 5 can relate only to present circumstances. Section 5 looks not only to the present effects of changes, but to their future effects as well .... Likewise, an impermissible purpose under § 5 may relate to anticipated as well as present circumstances."It is quite plausible to see [the annexation] as motivated, in part, by the impermissible purpose of minimizing future black voting strength .... This is just as impermissible a purpose as the dilution of present black voting strength." Id., at 471-472 (citations and footnotes omitted).Appellants assert that we must have viewed the city's purpose as discriminatory but nonretrogressive because, as the city noted in contending that it lacked even a discriminatory purpose, the city could not have been acting to worsen the voting strength of any present black residents, since there were no black voters at the time. However, as the above quoted passage suggests, we did not hold that the purpose prong of § 5 extends beyond retrogression, but rather held that a jurisdiction with no minority voters can have a retrogressive purpose, at the present time, by intending to worsen the voting strength of future minority voters. Put another way, our holding in Pleasant Grove had nothing to do with the question whether, to justify the denial of preclearance on the basis of the purpose prong, the purpose must be retrogressive; instead, it involved the question whether the purpose must be to achieve retrogression at once or could include, in the case of a jurisdiction with no present minority voters, retrogression with regard to operation of the proposed plan (as compared with341operation of the status quo) against new minority voters in the future. Like the dictum from Beer, therefore, Pleasant Grove is simply inapposite here.***In light of the language of § 5 and our prior holding in Beer, we hold that § 5 does not prohibit preclearance of a redistricting plan enacted with a discriminatory but nonretrogressive purpose. Accordingly, the judgment of the District Court is affirmed.It is so ordered | OCTOBER TERM, 1999SyllabusRENO, ATTORNEY GENERAL v. BOSSIER PARISH SCHOOL BOARDAPPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIANo. 98-405. Argued April 26, 1999-Reargued October 6, 1999-Decided January 24, 2000*Bossier Parish, Louisiana, a jurisdiction covered by § 5 of the Voting Rights Act of 1965, is thereby prohibited from enacting any change in a "voting qualification[,] prerequisite[,] standard, practice, or procedure" without first obtaining preclearance from either the Attorney General or the District Court. When, following the 1990 census, the Bossier Parish School Board (Board) submitted a proposed redistricting plan to the Attorney General, she denied preclearance. The Board then filed this preclearance action in the District Court. Section 5 authorizes preclearance of a proposed voting change that "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." Appellants conceded that the Board's plan did not have a prohibited "effect" under § 5, since it was not "retrogressive," i. e., did not worsen the position of minority voters, see Beer v. United States, 425 U. S. 130, but claimed that it violated § 5 because it was enacted for a discriminatory "purpose." The District Court granted preclearance. On appeal, this Court disagreed with the District Court's proposition that all evidence of a dilutive (but nonretrogressive) effect forbidden by § 2 was irrelevant to whether the Board enacted the plan with a retrogressive purpose forbidden by § 5. Reno v. Bossier Parish School Bd., 520 U. S. 471, 486-487 (Bossier Parish I). This Court vacated and remanded for further proceedings as to the Board's purpose in adopting its plan, id., at 486, leaving for the District Court the question whether the § 5 purpose inquiry ever extends beyond the search for retrogressive intent, ibid. On remand, the District Court again granted preclearance. Concluding, inter alia, that there was no evidence of discriminatory but nonretrogressive purpose, the court left open the question whether § 5 prohibits preclearance of a plan enacted with such a purpose.*Together with No. 98-406, Price et al. v. Bossier Parish School Bd., also on appeal from the same court.321Held:1. The Court rejects the Board's contention that these cases are mooted by the fact that the 1992 plan will never again be used because the next scheduled election will occur in 2002, when the Board will have a new plan in place based upon data from the 2000 census. In at least one respect, the 1992 plan will have probable continuing effect: It will serve as the baseline against which appellee's next voting plan will be evaluated for preclearance purposes. Pp. 327-328.2. In light of § 5's language and Beer's holding, § 5 does not prohibit preclearance of a redistricting plan enacted with a discriminatory but nonretrogressive purpose. Pp. 328-341.(a) In order to obtain preclearance, a covered jurisdiction must establish that the proposed 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." The covered jurisdiction bears the burden of persuasion on both points. See, e. g., Bossier Parish I, supra, at 478. In Beer, the Court concluded that, in the context of a § 5 vote-dilution claim, the phrase "abridging the right to vote on account of race or color" limited the term "effect" to retrogressive effects. 425 U. S., at 141. Appellants' contention that in qualifying the term "purpose," the very same phrase does not impose a limitation to retrogression, but means discrimination more generally, is untenable. See BankAmerica Corp. v. United States, 462 U. S. 122, 129. Richmond v. United States, 422 U. S. 358, 378-379, distinguished. Appellants argue that subjecting both prongs to the same limitation produces a purpose prong with a trivial reach, covering only "incompetent retrogressors." If this were true-and if it were adequate to justify giving the very same words different meanings when qualifying "purpose" and "effect"there would be instances in which this Court applied such a construction to the innumerable statutes barring conduct with a particular "purpose or effect," yet appellants are unable to cite a single case. Moreover, the purpose prong has value and effect even when it does not cover conduct additional to that of a so-called incompetent retrogressor: The Government need only refute a jurisdiction's prima facie showing that a proposed voting change does not have a retrogressive purpose, and need not counter the jurisdiction's evidence regarding actual retrogressive effect. Although virtually identical language in § 2(a) and the Fifteenth Amendment has been read to refer not only to retrogression, but to discrimination more generally, giving the language different meaning in § 5 is faithful to the different context in which the term "abridging" is used. Appellants' reading would exacerbate the "substantial" federalism costs that the preclearance procedure already exacts, Lopez v. Monterey County, 525 U. S. 266, 282, perhaps to the extent322Full Text of Opinion |
396 | 1970_785 | MR. JUSTICE BRENNAN delivered the opinion of the Court.Upon the petition of Plumbers and Steamfitters Local 102, the National Labor Relations Board ordered that a representation election be held among the pipefitters employed by respondent, Natural Gas Utility District of Hawkins County, Tennessee, 167 N.L.R.B. 691 (1967). In the representation proceeding, respondent objected to the Board's jurisdiction on the sole ground that, as a "political subdivision" of Tennessee, it was not an "employer" subject to Board jurisdiction under § 2(2) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 137, 29 U.S.C. § 152(2). [Footnote 1] When the Union won the election Page 402 U. S. 602 and was certified by the Board as bargaining representative of the pipefitters, respondent refused to comply with the Board's certification and recognize and bargain with the Union. An unfair labor practice proceeding resulted and the Board entered a cease and desist order against respondent on findings that respondent was in violation of §§ 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(5). 170 N.L.R.B. 1409 (1968). Respondent continued its noncompliance, and the Board sought enforcement of the order in the Court of Appeals for the Sixth Circuit. Enforcement was refused, the court holding that respondent was a "political subdivision," as contended. 427 F.2d 312 (1970). We granted certiorari, 400 U.S. 990 (1971). We affirm.The respondent was organized under Tennessee's Utility District Law of 1937, Tenn.Code Ann. §§ 6-2601 to 6-2627 (1955). In First Suburban Water Utility District v. McCanless, 177 Tenn. 128, 146 S.W.2d 948 (1941), the Tennessee Supreme Court held that a utility district organized under this Act was an operation for a state governmental or public purpose. The Court of Appeals held that this decision "was of controlling importance on the question whether the District was a political subdivision of the state" within § 2(2), and "was binding on the Board." 427 F.2d at 315. The Board, on the other hand, had held that, "while such State law declarations and interpretations are given careful consideration . . . , they are not necessarily controlling." 167 N.L.R.B. at 691. We disagree with the Court of Appeals, and agree with the Board. Federal, Page 402 U. S. 603 rather than state, law governs the determination, under § 2(2), whether an entity created under state law is a "political subdivision" of the State, and therefore not an "employer" subject to the Act. [Footnote 2]The Court of Appeals for the Fourth Circuit dealt with this question in NLRB v. Randolph Electric Membership Corp., 343 F.2d 60 (1965), where the Board had determined that Randolph Electric was not a "political subdivision" within § 2(2). We adopt as correct law what was said at 62-63 of the opinion in that case:"There are, of course, instances in which the application of certain federal statutes may depend on state law. . . .""But this is controlled by the will of Congress. In the absence of a plain indication to the contrary, however, it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law. Jerome v. United States, 318 U. S. 101, 318 U. S. 104 . . . (1943).""The argument of the electric corporations fails to persuade us that Congress intended the result for which they contend. Furthermore, it ignores the teachings of the Supreme Court as to the congressional purpose in enacting the national labor laws. In National Labor Relations Board v. Hearst Publications, 322 U. S. 111, 322 U. S. 123 . . . (1944), the Court dealt with the meaning of the term 'employee' as used in the Wagner Act, saying: "" Both the terms and the purposes of the statute, as well as the legislative history, show that Congress had in mind no . . . patchwork plan for securing freedom of employees' organization and of collective bargaining. The Wagner Act is federal legislation, Page 402 U. S. 604 administered by a national agency, intended to solve a national problem on a national scale. . . . Nothing in the statute's background, history, terms or purposes indicates its scope is to be limited by . . . varying local conceptions, either statutory or judicial, or that it is to be administered in accordance with whatever different standards the respective states may see fit to adopt for the disposition of unrelated, local problems.""Thus, it is clear that state law is not controlling, and that it is to the actual operations and characteristics of [respondents] that we must look in deciding whether there is sufficient support for the Board's conclusion that they are not 'political subdivisions' within the meaning of the National Labor Relations Act."We turn then to identification of the governing federal law. The term "political subdivision" is not defined in the Act, and the Act's legislative history does not disclose that Congress explicitly considered its meaning. The legislative history does reveal, however, that Congress enacted the § 2(2) exemption to except from Board cognizance the labor relations of federal, state, and municipal governments, since governmental employees did not usually enjoy the right to strike. [Footnote 3] In the light of that purpose, the Board, according to its Brief, p. 11,"has limited the exemption for political subdivisions to entities that are either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who Page 402 U. S. 605 are responsible to public officials or to the general electorate."The Board's construction of the broad statutory term is, of course, entitled to great respect. Randolph Electric, supra, at 62. This case does not however require that we decide whether "the actual operations and characteristics" of an entity must necessarily feature one or the other of the Board's limitations to qualify an entity for the exemption, for we think that it is plain on the face of the Tennessee statute that the Board erred in its reading of it in light of the Board's own test. The Board found that "the Employer in this case is neither created directly by the State nor administered by State-appointed or elected officials." 167 N.L.R.B. at 691-692 (footnotes omitted). But the Board test is not whether the entity is administered by "State-appointed or elected officials." Rather, alternative (2) of the test is whether the entity is "administered by individuals who are responsible to public officials or to the general electorate" (emphasis added), and the Tennessee statute makes crystal clear that respondent is administered by a Board of Commissioners appointed by an elected county judge, and subject to removal proceedings at the instance of the Governor, the county prosecutor, or private citizens. Therefore, in the light of other "actual operations and characteristics" under that administration, the Board's holding that respondent "exists as an essentially private venture, with insufficient identity with or relationship to the State of Tennessee," 167 N.L.R.B. at 691, has no "warrant in the record" and no "reasonable basis in law." NLRB v. Hearst Publications, 322 U. S. 111, 322 U. S. 131 (1944).Respondent is one of nearly 270 utility districts established under the Utility District Law of 1937. Under that statute, Tennessee residents may create districts to provide a wide range of public services such as the Page 402 U. S. 606 furnishing of water, sewers, sewage disposal, police protection, fire protection, garbage collection, street lighting, parks, and recreational facilities, as well as the distribution of natural gas. Tenn.Code Ann. § 6-2608 (Supp. 1970). Acting under the statute, 38 owners of real property submitted in 1957 a petition to the county court of Hawkins County requesting the incorporation of a utility district to distribute natural gas within a specified portion of the county. The county judge, after holding a required public hearing and making required findings that the "public convenience and necessity requires the creation of the district," and that "the creation of the district is economically sound and desirable," Tenn.Code Ann. § 6-2604 (Supp. 1970), entered an order establishing the District. The judge's order and findings were appealable to Tennessee's appellate courts by any party "having an interest in the subject matter." Tenn.Code Ann. § 6-2606 (1955).To carry out its functions, the District is granted not only all the powers of a private corporation, Tenn.Code Ann. § 6-2610 (1955), but also"all the powers necessary and requisite for the accomplishment of the purpose for which such district is created, capable of being delegated by the legislature."Tenn.Code Ann. § 6-2612 (1955). This delegation includes the power of eminent domain, which the District may exercise even against other governmental entities. Tenn.Code Ann. § 6-2611 (1955). The District is operated on a nonprofit basis, and is declared by the statute to be"a 'municipality' or public corporation in perpetuity under its corporate name and the same shall in that name be a body politic and corporate with power of perpetual succession, but without any power to levy or collect taxes."Tenn.Code Ann. § 6-2607 (Supp. 1970). The property and revenue of the District are exempted from all state, county, and municipal taxes, and the District's bonds are similarly Page 402 U. S. 607 exempt from such taxation, except for inheritance, transfer, and estate taxes. Tenn.Code Ann. § 6-2626 (1955).The District's records are "public records," and, as such open, for inspection. Tenn.Code Ann. § 6-2615 (Supp. 1970). The District is required to publish its annual statement in a newspaper of general circulation, showing its financial condition, its earnings, and its method of setting rates. Tenn.Code Ann. § 6-2617 (Supp. 1970). The statute requires the District's commissioners to hear any protest to its rates filed within 30 days of publication of the annual statement at a public hearing, and to make and to publish written findings as to the reasonableness of the rates. Tenn.Code Ann. § 6-2618 (1955). The commissioners' determination may be challenged in the county court, under procedures prescribed by the statute. Ibid.The District's commissioners are initially appointed, from among persons nominated in the petition, by the county judge, who is an elected public official. Tenn.Code Ann. § 6-2604 (Supp. 1970). The commissioners serve four-year terms, [Footnote 4] and, contrary to the Board's finding that the State reserves no "power to remove or otherwise discipline those responsible for the Employer's operations," 167 N.L.R.B. at 692, are subject to removal under Tennessee's General Ouster Law, which provides procedures for removing public officials from office for misfeasance or nonfeasance. Tenn.Code Ann. § 8-2701 et seq. (1955); First Suburban Water Utility District v. McCanless, 177 Tenn. at 138, 146 S.W.2d at 952. Proceedings under the law may be initiated by the Governor, the state attorney general, the county prosecutor, or ten citizens. Tenn.Code Ann. §§ 8-2708, 8-2709, 8-2710 (1955). When a vacancy occurs, the county Page 402 U. S. 608 judge appoints a new commissioner if the remaining two commissioners cannot agree upon a replacement. Tenn.Code Ann. § 6-2614 (Supp. 1970). In large counties, all vacancies are filled by popular election. Ibid. The commissioners are generally empowered to conduct the District's business. They have the power to subpoena witnesses and to administer oaths in investigating District affairs, Tenn.Code Ann. § 6-2616(5) (1955), and they serve for only nominal compensation. Tenn.Code Ann. § 6-2615 (Supp. 1970). Plainly, commissioners who are beholden to an elected public official for their appointment, and are subject to removal procedures applicable to all public officials, qualify as "individuals who are responsible to public officials or to the general electorate" within the Board's test.In such circumstances, the Board itself has recognized that authority to exercise the power of eminent domain weighs in favor of finding an entity to be a political subdivision. New Jersey Turnpike Authority, 33 L.R.R.M. 1528 (1954). We have noted that respondent's power of eminent domain may be exercised even against other governmental units. And the District is further given an extremely broad grant of"all the powers necessary and requisite for the accomplishment of the purpose for which such district is created, capable of being delegated by the legislature."Tenn.Code Ann. § 2612 (1955). The District's "public records" requirement and the automatic right to a public hearing and written "decision" by the commissioners accorded to all users betoken a state, rather than a private, instrumentality. The commissioners' power of subpoena and their nominal compensation further suggest the public character of the District.Moreover, a conclusion that the District is a political subdivision finds support in the treatment of the District under other federal laws. Income from its bonds is exempt Page 402 U. S. 609 from federal income tax, as income from an obligation of a "political subdivision" under 26 U.S.C. § 103. Social Security benefits for the District's employees are provided through voluntary, rather than mandatory, coverage, since the District is considered a political subdivision under the Social Security Act. 42 U.S.C. § 418.Respondent is therefore an entity "administered by individuals [the commissioners] who are responsible to public officials [an elected county judge]" -- and this, together with the other factors mentioned, satisfies us that its relationship to the State is such that respondent is a "political subdivision" within the meaning of § 2(2) of the Act. Accordingly, the Court of Appeals' judgment denying enforcement of the Board's order isAffirmed | U.S. Supreme CourtNLRB v. Nat. Gas Util. Dist. of Hawkins County, 402 U.S. 600 (1971)National Labor Relations Board v. Natural GasUtility District of Hawkins County, TennesseeNo. 785Argued April 20, 1971Decided June 1, 1971402 U.S. 600SyllabusIn this unfair labor practice proceeding under the Labor Management Relations Act, respondent contended that it was not an "employer," but came within the "political subdivision" exemption in § 2(2) of the Act. The National Labor Relations Board (NLRB) had found that respondent met neither of the tests to which it held that exemption was limited, viz., entities that are either (1) created directly by the State, so as to constitute governmental departments or administrative arms, or (2) administered by individuals who are responsible to public officials or the general electorate. The Court of Appeals upheld respondent's contention, viewing as controlling a Tennessee Supreme Court decision construing the State's Utility District Law under which respondent had been organized. A District organized under that statute is a "municipality' or public corporation," has eminent domain powers, is exempt from state, county, or municipal taxation, and whose income from its bonds is exempt from federal income tax. The officers who conduct the District's business receive nominal compensation, are appointed by a public official, and are subject to removal by statutory procedures applicable to public officials.Held:1. Federal, rather than state, law governs the determination whether an entity is a "political subdivision" of a State within the meaning of § 2(2) of the Labor Management Relations Act. NLRB v. Randolph Electric Membership Corp., 343 F.2d 60. Pp. 402 U. S. 602-604.2. While the NLRB's construction of the statutory term is entitled to great respect, there is no "warrant in the record" and "no reasonable basis in law" for the NLRB's conclusion that respondent was not a political subdivision. In the light of all the factors present here, including the fact that the District is administered by individuals who are responsible to public officials (thus meeting even one of the tests used by the NLRB), respondent Page 402 U. S. 601 comes within the coverage of that statutory exemption. Pp. 402 U. S. 604-609.427 F.2d 312, affirmed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACK, DOUGLAS, HARLAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEWART, J., filed a dissenting opinion, post, p. 402 U. S. 609. |
397 | 1973_73-466 | MR. JUSTICE BRENNAN delivered the opinion of the Court.The Florida Supreme Court held that the Florida District Court of Appeal erred in refusing to issue a writ of prohibition to restrain the Circuit Court for Duval County from exercising its jurisdiction over a suit within the purview of § 301 of the Labor Management Relations Act (LMRA). [Footnote 1] The suit sought to enjoin respondent unions' breach of a no-strike clause contained in a Page 417 U. S. 14 collective bargaining agreement, which breach arguably is also an unfair labor practice under the Act. The State Supreme Court stated:"It is unquestionable that state courts do have jurisdiction to enforce a collective bargaining agreement and to enjoin a strike in violation of a 'no-strike' clause contained therein, but not when the strike is also arguably a unfair labor practice prohibited by federal law."279 So. 2d 300, 302 (1973). We granted certiorari to decide whether the holding of the Florida Supreme Court was consistent with decisions of this Court, including Teamsters Local v. Lucas Flour Co., 369 U. S. 95 (1962), and Smith v. Evening News Assn., 371 U. S. 195 (1962). 414 U.S. 1063 (1973). We reverse.Article VI of a collective bargaining agreement between petitioner, William E. Arnold Co., and respondents, Carpenters District Council of Jacksonville and Vicinity and its affiliate, Local 627 (Carpenters), provides:"There shall be no work stoppage, slowdown, work cessation or strike because of a Jurisdictional Dispute. A mutually agreeable settlement, or joint decision of the International Unions involved, or decision or interpretation of the National Joint Board for the Settlement of Jurisdictional Disputes (or Hearing Panel) shall be binding and all parties agree to accept such decision or interpretation."In 1971, during the construction of the Jacksonville General Hospital, one of Arnold's subcontractors assigned work claimed by the Carpenters to the Wood, Wire and Metal Lathers International Union, AFL-CIO, Local 59. The Carpenters struck Arnold to force reassignment of the work to their members. Arnold thereupon brought this suit in the Circuit Court of Duval County to enjoin the Carpenters from violating the provisions of Page 417 U. S. 15 Art. VI and obtained a temporary restraining order prohibiting the strike. The Carpenters then sought a writ of prohibition from a Florida District Court of Appeal, contending that the Circuit Court lacked jurisdiction to order injunctive relief because the alleged breach of the no-strike clause was also arguably an unfair labor practice under § 8(b)(4)(i)(D) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(b)(4)(i)(D), [Footnote 2] and therefore fell within the exclusive jurisdiction of the National Labor Relations Board (Board). The District Court of Appeal denied the writ of prohibition and, as previously mentioned, the Supreme Court of Florida reversed.When an activity is either arguably protected by § 7 or arguably prohibited by § 8 of the NLRA, the preemption doctrine developed in San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), and its progeny, teaches that, ordinarily,"the States as well as the federal courts must defer to the exclusive competence Page 417 U. S. 16 of the National Labor Relations Board if the danger of state interference with national policy is to be averted."Id. at 359 U. S. 245. When, however, the activity in question also constitutes a breach of a collective bargaining agreement, the Board's authority "is not exclusive, and does not destroy the jurisdiction of the courts in suits under § 301." Smith v. Evening News Assn., 371 U.S. at 371 U. S. 197. This exception was explicitly reaffirmed in Motor Coach Employees v. Lockridge, 403 U. S. 274, 403 U. S. 297-298 (1971). It was fashioned because the history of § 301 reveals that "Congress deliberately chose to leave the enforcement of collective agreements 'to the usual processes of the law,'" Dowd Box Co. v. Courtney, 368 U. S. 502, 368 U. S. 513 (1962). Thus, we have said that the Garmon doctrine is "not relevant" to actions within the purview of § 301, Teamsters Local v. Lucas Flour Co., 369 U.S. at 369 U. S. 101 n. 9, which may be brought in either state or federal courts, Dowd Box Co. v. Courtney, supra, at 368 U. S. 506.Indeed, Board policy is to refrain from exercising jurisdiction in respect of disputed conduct arguably both an unfair labor practice and a contract violation when, as in this case, the parties have voluntarily established by contract a binding settlement procedure. See, e.g., The Associated Press, 199 N.L.R.B. 1110 (1972); Eastman Broadcasting Co., 199 N.L.R.B. 434 (1972); Laborers Local 423, 199 N.L.R.B. 450 (1972); Collyer Insulated Wire, 192 N.L.R.B. 837 (1971). The Board said in Collyer,"an industrial relations dispute may involve conduct which, at least arguably, may contravene both the collective agreement and our statute. When the parties have contractually committed themselves to mutually agreeable procedures for resolving their disputes during the period of the contract, we are of the view that those procedures should be afforded full opportunity to Page 417 U. S. 17 function. . . . We believe it to be consistent with the fundamental objectives of Federal law to require the parties . . . to honor their contractual obligations, rather than, by casting [their] dispute in statutory terms, to ignore their agreed-upon procedures."Id. at 842-843. The Board's position harmonizes with Congress' articulated concern that"[f]inal adjustment by a method agreed upon by the parties is . . . the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement. . . ."§ 203(d) of the LMRA, 29 U.S.C. § 173(d).Furthermore, when the particular contract violation also involves an arguable violation of § 8(b)(4)(i)(D) of the NLRA concerning jurisdictional disputes, as in this case, the Board has recognized added policy justifications for deferring to the contractual dispute settlement mechanism agreed upon by the parties. Section 10(k) of the NLRA, 29 U.S.C. § 160(k), establishes a special procedure for the Board's resolution of charges involving jurisdictional disputes:"Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed."(Emphasis added.) Page 417 U. S. 18 Thus, § 10(k) "not only tolerates but actively encourages, voluntary settlements of work assignment controversies between unions. . . ." Carey v.Westinghouse Electric Corp., 375 U. S. 261, 375 U. S. 266 (1964). Recognizing Congress' preference for voluntary settlement of jurisdictional disputes, the Board has declined jurisdiction in § 10(k) cases, commenting that,"[i]f we retained jurisdiction . . . , the statutory purpose to encourage the voluntary settlement of jurisdictional disputes would be frustrated in that a party receiving an adverse decision from the agreed-upon tribunal for settling its jurisdictional dispute would be encouraged to ignore such decision, lapse into noncompliance, and then come before this Board for a more favorable resolution of the dispute."Laborers Local 423, 199 N.L.R.B. at 451.The Board's practice and policy of declining to exercise its concurrent jurisdiction over arguably unfair labor practices which also violate provisions of collective bargaining agreements for voluntary adjustment of disputes highlight the congressional purpose that § 301 suits in state and federal courts should be the primary means for "promoting collective bargaining that [ends] with agreements not to strike." Textile Workers v. Lincoln Mills, 353 U. S. 448, 353 U. S. 453 (1957). The assurance of swift and effective judicial relief provides incentive to eschew economic weapons in favor of binding grievance procedures and no-strike clauses.The Carpenters contend, however, that state court jurisdiction over collective bargaining disputes should be limited to claims for damages, rather than injunctive relief. See Brief for Respondents 7-9. We disagree. To be sure, Lucas, Smith, and Lockridge, all supra, involved only damages claims, but nothing in the opinions in those cases remotely suggests that state court jurisdiction should turn upon the particular type of relief sought. Page 417 U. S. 19 Indeed, Avco Corp. v. Aero Lodge 735, 390 U. S. 557, 390 U. S. 561 (1968), disposes of the argument. We there said:"The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy. . . . Any error in granting or designing relief 'does not go to the jurisdiction of the court.' Swift & Co. v. United States, 276 U. S. 311, 276 U. S. 331."Moreover, the policy reasons against extension of the Garmon doctrine to suits within the scope of § 301 are particularly compelling when the relief sought is specific performance of a no-strike obligation, rather than damages. What we said in Boys Markets v. Clerks Union, 398 U. S. 235, 398 U. S. 248 (1970), is pertinent here:"[A] no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration. See Textile Workers Union v. Lincoln Mills, supra, at 353 U. S. 455. Any incentive for employers to enter into such an arrangement is necessarily dissipated if the principal and most expeditious method by which the no-strike obligation can be enforced is eliminated. While it is, of course, true, as respondent contends, that other avenues of redress, such as an action for damages, would remain open to an aggrieved employer, an award of damages after a dispute has been settled is no substitute for an immediate halt to an illegal strike. Furthermore, an action for damages prosecuted during or after a labor dispute would only tend to aggravate industrial strife and delay an early resolution of the difficulties between employer and union."(Footnotes omitted.) See also Gateway Coal Co. v. United Mine Workers, 414 U. S. 368, 414 U. S. 382 (1973). Page 417 U. S. 20Therefore, we reject the argument of Carpenters that the availability of effective equitable relief should be limited to the federal courts. We have previously expressed our agreement with Chief Justice Traynor of the California Supreme Court that"whether or not Congress could deprive state courts of the power to give such [injunctive] remedies when enforcing collective bargaining agreements, it has not attempted to do so either in the Norris-La Guardia Act or section 301,"McCarroll v. Los Angeles County Dist. Council of Carpenters, 49 Cal. 2d 45, 63, 315 P.2d 322, 332 (1957). See Boys Markets v. Clerks Union, supra, at 398 U. S. 247. Rather, the jurisdiction given federal courts under § 301 was "not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various States over contracts made by labor organizations," Dowd Box Co. v. Courtney, 368 U.S. at 368 U. S. 511We do not, of course, pass upon the propriety of the injunctive relief sought in the present case. That is a question to be resolved on remand. The judgment of the Supreme Court of Florida is reversed, and the case remanded for further proceedings not inconsistent with this opinion.It is so ordered | U.S. Supreme CourtWilliam E. Arnold Co. v. Carpenters, 417 U.S. 12 (1974)William E. Arnold Co. v. Carpenters DistrictCouncil of Jacksonville and VicinityNo. 73-466Argued March 20, 1974Decided May 20, 1974417 U.S. 12SyllabusWhen respondent unions called a jurisdictional dispute strike against petitioner employer, petitioner brought this suit, which is within the purview of § 301 of the Labor Management Relations Act, in a Florida trial court to enjoin respondents' breach of a no-strike clause in the collective bargaining agreement containing a binding settlement procedure. That court issued a temporary restraining order against the strike, and its action was upheld by an intermediate appellate court. The Florida Supreme Court reversed, holding that, since the unions' breach was also arguably an unfair labor practice under § 8(b)(4)(i)(D) of the National Labor Relations Act (NLRA) involving jurisdictional disputes, the jurisdiction of the National Labor Relations Board (NLRB) was exclusive.Held:1. When the activity in question is arguably both an unfair labor practice prohibited by § 8 of the NLRA and a breach of a collective bargaining agreement, the NLRB's authority "is not exclusive, and does not destroy the jurisdiction of the courts in suits under § 301." Smith v. Evening News Assn., 371 U. S. 195, 371 U. S. 197. Pp. 417 U. S. 15-18.(a) The preemption doctrine of San Diego Building Trades Council v. Garmon, 359 U. S. 236, is "not relevant" to actions within the purview of § 301, which may be brought in either state or federal courts. P. 417 U. S. 16.(b) NLRB policy is to refrain from exercising jurisdiction as to conduct which is arguably both an unfair labor practice and a contract violation when, as here, the parties have voluntarily established by contract a binding settlement procedure. P. 417 U. S. 16.(c) When the particular contract violations also involve an arguable violation of § 8(b)(4)(i)(D), the NLRB has recognized added policy justifications for deferring to the contractual dispute settlement mechanism, as indicated by § 10(k) of the NLRA, which, by its special procedure for NLRB resolution of charges Page 417 U. S. 13 involving jurisdictional disputes "not only tolerates, but actually encourages," settlements of such disputes. Pp. 417 U. S. 17-18.2. State court jurisdiction over collective bargaining disputes does not turn upon the particular type of relief sought, and therefore is not limited to claims for damages, rather than injunctive relief. Pp. 417 U. S. 18-20.279 So. 2d 300, reversed and remanded.BRENNAN, J., delivered the opinion for a unanimous Court. |
398 | 1965_10 | MR. JUSTICE FORTAS delivered the opinion of the Court.This case presents an aspect of the continuing problem of the interaction of federal and state laws in our complex federal system. Specifically, the question presented is whether, in the circumstances of this case, the Federal Government, in its zealous pursuit of the balance due on a disaster loan made by the Small Business Administration, may obtain judgment against Ethel Mae Page 382 U. S. 343 Yazell of Lampasas, Texas. At the time the loan was made, Texas law provided that a married woman could not bind her separate property unless she had first obtained a court decree removing her disability to contract. [Footnote 1] Mrs. Yazell had not done so. At all relevant times, she was a beneficiary of the peculiar institution of coverture which is now, with some exceptions, relegated to history's legal museum.The impact of the quaint doctrine of coverture upon the federal treasury is therefore of little consequence. Even the Texas law which gave rise to the difficulty was repealed in 1963. [Footnote 2] The amount in controversy in this extensive litigation, about $4,000, is important only to the Yazell family. But the implications of the controversy are by no means minor. Using Clearfield Trust Co. v. United States, 318 U. S. 363, as its base, the Government here seeks to occupy new ground in the inevitable conflict between federal interest and state law. The Government was rebuffed by the trial and appellate courts. We hold that, in the circumstances of this case, the state rule governs, and, accordingly, we affirm the decision of the United States Court of Appeals for the Fifth Circuit, 334 F.2d 454. [Footnote 3] Page 382 U. S. 344Reference in some detail to the facts of this case will illuminate the problem. [Footnote 4] Delbert L. Yazell operated in Lampasas, Texas, a small shop to sell children's clothing. The shop was called Yazell's Little Ages. Occasionally, his wife, Ethel Mae, assisted in the business. The business, under Texas law, was the community property of husband and wife, who, however, were barred by the coverture statute from forming a partnership. Dillard v. Smith, 146 Tex. 227, 230, 205 S.W.2d 366, 367. A disastrous flood occurred in Lampasas on May 12, 1957. The stock of Yazell's Little Ages was ruined. Its fixtures were seriously damaged. [Footnote 5]The Small Business Administration had a regional office in Dallas, Texas. As of December 31, 1963, the agency had outstanding in Texas, generally under the supervision of its Dallas regional office, 1,363 business loans and 4,172 disaster loans, aggregating more than $60,000,000. [Footnote 6] Upon the occurrence of the Lampasas flood, the SBA opened a Disaster Loan Office in Lampasas, under the direction of the Dallas office. [Footnote 7]On June 10, 1957, Mr. Yazell conferred with a representative of the SBA about a loan to enable him to cope with the disaster to his business. After a careful, detailed, but commendably prompt investigation, the head of SBA's Disaster Loan Office wrote Mr. Yazell on June 20, 1957, that authorization for a loan of $12,000 had been received. Yazell was informed that the loan would be made upon his compliance with certain requirements. He was told that a named law firm in Lampasas had been Page 382 U. S. 345 employed by the SBA to assist him in complying with the terms of the authorization. [Footnote 8]Yazell and his wife, "doing business as" Yazell's Little Ages, then signed a note in the amount of $12,000, payable to the order of SBA in Dallas at the rate of $120 per month, including 3% interest. On the same day, they also executed a chattel mortgage on their stock of merchandise and their store fixtures. By express reference to Article 4000 of the Revised Civil Statutes of Texas, the chattel mortgage exempted from its coverage retail sales made from the stock. The chattel mortgage was accompanied by a separate acknowledgment of Mrs. Yazell before a notary public, which was required by Texas law as a part of the institution of coverture. The notary attested, in the words of the applicable Texas statute, that"Ethel Mae Yazell, wife of Delbert L. Yazell . . . whose name is subscribed to the [chattel mortgage] . . . , having been examined by me privily and apart from her husband . . . acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same. . . ."See Tex.Rev.Civ.Stat.Ann. Art. 6608. See also Art. 1300, 4618 (Supp.1964), 6605. These statutes all relate to conveyances of the marital homestead.The note, chattel mortgage and accompanying documents were in due course sent to the Dallas office of SBA. Both the Lampasas law firm engaged by SBA to assist Yazell and the Acting Regional Counsel of SBA certified that "all action has been taken deemed desirable . . . to assure the validity and legal enforceability of the Note." Thereafter, the funds were made available to Yazell pursuant to the terms of the loan. [Footnote 9]From the foregoing, it is clear (1) that the loan to Yazell was individually negotiated in painfully particularized Page 382 U. S. 346 detail, and (2) that it was negotiated with specific reference to Texas law including the peculiar acknowledgment set forth above. None of the prior cases decided by this Court in which the federal interest has been held to override state law resembles this case in these respects; the differences are intensely material to the resolution of the issue presented.Next, it seems clear (1) that the SBA was aware and is chargeable with knowledge that the contract would be subject to the Texas law of coverture; (2) that both the SBA and the Yazells entered into the contract without any thought that the defense of coverture would be unavailable to Mrs. Yazell with respect to her separate property as provided by Texas law; and (3) that, in the circumstances, the United States is seeking the unconscionable advantage of recourse to assets for which it did not bargain. These points will be briefly elaborated before we reach the ultimate issue: whether, despite all of the foregoing, some "federal interest" requires us to give the United States this advantage.It will be noted that the transaction was custom tailored by officials of SBA located in Dallas and Lampasas, Texas, and undoubtedly familiar with Texas law. It was twice approved by Texas counsel who certified that "all action has been taken deemed desirable," even though no effort was made to cause Mrs. Yazell to have her incapacity removed under Texas law. [Footnote 10] In at least two decisions since 1949, federal courts had applied the Texas law of coverture in actions under federal statutes. [Footnote 11] At no time does it appear that the SBA made the slightest suggestion to the Yazells or their Page 382 U. S. 347 SBA-appointed counsel that it intended to enforce the contract against Mrs. Yazell's separate property. [Footnote 12] The forms used, although specifically adapted to this transaction and to Texas law, made no reference to such an intent, and it is either probable or certain that no such intent existed. As stated above, the SBA now has more than 5,000 loans outstanding in Texas. [Footnote 13] The Solicitor General informed the Court that the SBA, in conformity with the general practice of government lending agencies, requires that the signature of the wife be obtained as a routine matter. [Footnote 14] If it had been intended that the result now sought by the Government would obtain, simple fairness, as well as elementary craftsmanship, would have dictated that, in a Texas agreement, the wife be advised at least by formal notation, that she was, in the opinion of SBA, binding her separate property, despite Texas law to the contrary. Again, it must be emphasized Page 382 U. S. 348 that this was a custom-made, hand-tailored, specifically negotiated transaction. It was not a nationwide act of the Federal Government, emanating in a single form from a single source. [Footnote 15]We now come to the basic issue which this case presents to this Court. Is there a "federal interest" in collecting the deficiency from Mrs. Yazell's separate property which warrants overriding the Texas law of coverture? Undeniably, there is always a federal interest to collect moneys which the Government lends. In this case, the federal interest is to put the Federal Government in position to levy execution against Mrs. Yazell's separate property, if she has any, for the unpaid balance of the $12,000 disaster loan after the stock of merchandise and fixtures of the store have been sold, after any other community property has been sold, and after Mr. Yazell's leviable assets have been exhausted. The desire of the Federal Government to collect on its loans is understandable. Perhaps even in the case of a disaster loan, the zeal of its representatives may be commended. But this serves merely to present the question -- not to answer it. Every creditor has the same interest in this respect; every creditor wants to collect. [Footnote 16] The United States, as sovereign, has certain preferences and priorities, [Footnote 17] but neither Congress nor this Court has Page 382 U. S. 349 ever asserted that they are absolute. For example, no contention will or can be made that the United States may, by judicial fiat, collect its loan with total disregard of state laws such as homestead exemptions. [Footnote 18] Accordingly, generalities as to the paramountcy of the federal interest do not lead inevitably to the result the Government seeks. Our problem remains: whether, in connection with an individualized, negotiated contract, the Federal Government may obtain a preferred right which is not provided by statute or specific agency regulation, which was not a part of its bargain, and which requires overriding a state law dealing with the intensely local interests of family property and the protection (whether or not it is up-to-date or even welcome) of married women.The Government asserts that this overriding federal interest can be found in the unlimited right of the Federal Government to choose the persons with whom it will contract, citing Perkins v. Lukens Steel Co., 310 U. S. 113, which is remote from the issue at hand. [Footnote 19] Realistically, Page 382 U. S. 350 in terms of Yazell's case, this has nothing to do with our problem: the loan was made to enable Yazell to reopen the store after the disaster of the flood. The SBA chose its contractors with knowledge of the limited office of Mrs. Yazell's signature under Texas law. That knowledge did not deter them. If they had "chosen" Mrs. Yazell as their contractor in the sense that her separate property would be liable for the loan, presumably they would have said so, and they would have proceeded with the formalities necessary under Texas law to have her disability removed. [Footnote 20] In all reality, the assertion that this case involves the right of the United States to choose its beneficiaries cannot determine the issue before us. [Footnote 21] This case is not a call to strike the shackles of an obsolete law from the hands of a beneficent Federal Government, nor is it a summons to do battle to vindicate the rights of women. It is much more mundane and commercial than either of these. The issue is whether the Federal Government may voluntarily and deliberately make a negotiated contract with knowledge of the limited capacity and liability of the persons with whom it contracts, and thereafter insist, in disregard of such limitation, upon collecting, (a) despite state law to the contrary relating to family property rights and liabilities, and (b) in the absence of federal statute, regulation Page 382 U. S. 351 or even any contract provision indicating that the state law would be disregarded.The institution of coverture is peculiar, and obsolete. It was repealed in Texas after the events of this case. It exists, in modified form, in Michigan. [Footnote 22] But the Government's brief tells us that there are 10 other States which limit in some degree the capacity of married women to contract. [Footnote 23] In some of these States, such as California, the limitations upon the wife's capacity and responsibility are part of an ingenious, complex, and highly purposeful distribution of property rights between husband and wife, geared to the institution of community property and designed to strike a balance between efficient management of joint property and protection of the separate property of each spouse. [Footnote 24] It is an appropriate inference from the Government's brief that its position is that the Federal Government, in order to collect on a negotiated debt, may override all such state arrangements despite the absence of congressional enactment or agency regulation, or even any stipulation in the negotiated Page 382 U. S. 352 contract or any warning to the persons with whom it contracts. [Footnote 25]We do not here consider the question of the constitutional power of the Congress to override state law in these circumstances by direct legislation [Footnote 26] or by appropriate authorization to an administrative agency coupled with suitable implementing action by the agency. [Footnote 27] We decide only that this Court, in the absence of specific congressional action, should not decree in this situation that implementation of federal interests requires overriding the particular state rule involved here. Both theory and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family property arrangements. They should be overridden by the federal courts only where clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied.Each State has its complex of family and family property arrangements. There is presented in this case no reason for breaching them. We have no federal law Page 382 U. S. 353 relating to the protection of the separate property of married women. We should not here invent one and impose it upon the States, despite our personal distaste for coverture provisions such as those involved in this case. Nor should we establish a principle which might cast doubt upon the effectiveness in relevant types of federal suits of the laws of 11 other States relating to the contractual positions of married women, which, as the Government's brief warns us, would be affected by our decision in the present case. Clearly, in the case of these SBA loans, there is no "federal interest" which justifies invading the peculiarly local jurisdiction of these States in disregard of their laws and of the subtleties reflected by the differences in the laws of the various States which generally reflect important and carefully evolved state arrangements designed to serve multiple purposes.The decisions of this Court do not compel or embrace the result sought by the Government. None of the cases in which this Court has devised and applied a federal principle of law superseding state law involved an issue arising from an individually negotiated contract. None of these cases permitted federal imposition and enforcement of liability on a person who, according to state law, was not competent to contract. None of these cases overrode state law in the peculiarly state province of family or family property arrangements. [Footnote 28] Page 382 U. S. 354This Court's decisions applying "federal law" to supersede state law typically relate to programs and actions which, by their nature, are and must be uniform in character throughout the Nation. The leading case, Clearfield Trust Co. v. United States, 318 U. S. 363, involved the remedial rights of the United States with respect to federal commercial paper. United States v. Allegheny County, 322 U. S. 174, was treated by the Court as involving the liability of property of the United States to local taxes. [Footnote 29] D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447, involved the rights of the FDIC as an insurer-assignee of a bank as against the maker of a note given the bank on the secret understanding it would not be called for payment. The bank deposit insurance program is general and standardized. In all relevant aspects, the terms are explicitly dictated by federal law. [Footnote 30] The Court held that FDIC was entitled to a federal rule protecting it against misrepresentations as to the financial condition of the banks it insures, accomplished by secret arrangements inconsistent with the policy of the applicable federal statutes.On the other hand, in the type of case most closely resembling the present problem, state law has invariably Page 382 U. S. 355 been observed. The leading case is Fink v. O'Neil, 106 U. S. 272. There, the United States sought to levy execution against property defined by state law as homestead, and exempted by the State from execution. This Court held that Revised Statutes § 916, now Rule 69 of the Federal Rules of Civil Procedure, governed, and that the United States' remedies on judgments were limited to those generally provided by state law. [Footnote 31] These homestead exemptions vary widely. They result in a diversity of rules in the various States and in a limitation upon the power of the Federal Government to collect which is comparable to the coverture limitation. [Footnote 32] The Page 382 U. S. 356 purpose and theory of the two types of limitations are obviously related. [Footnote 33] Another illustration of acceptance of divergent and limiting state laws is afforded by Reconstruction Finance Corp. v. Beaver County, 328 U. S. 204. In that case, this Court held that the state classification of property owned by the Reconstruction Finance Corporation as "real property" for tax purposes would prevail in determining whether the property was within the class of property as to which Congress had waived the federal exemption from local taxation.Generally, in the cases applying state law to limit or condition the enforcement of a federal right, the Court has insisted that the state law is being "adopted" as the federal rule. Even so, it has carefully pointed out that this theory would make it possible to "adopt," as the Page 382 U. S. 357 operative "federal" law, differing laws in the different States, depending upon the State where the relevant transaction takes place. [Footnote 34]Although it is unnecessary to decide in the present case whether the Texas law of coverture should apply ex proprio vigore -- on the theory that the contract here was made pursuant and subject to this provision of state law -- or by "adoption" as a federal principle, it is clear that the state rule should govern. There is here no need for uniformity. There is no problem in complying with state law; in fact, SBA transactions in each State are specifically and in great detail adapted to state law. [Footnote 35] Page 382 U. S. 358 There is in this case no defensible reason to override state law unless, despite the contrary indications, in Fink v. O'Neil and elsewhere, as has been set forth, we are to take the position that the Federal Government is entitled to collect regardless of the limits of its contract and regardless of any state laws, however local and peculiarly domestic they may be.The decision below isAffirmed | U.S. Supreme CourtUnited States v. Yazell, 382 U.S. 341 (1966)United States v. YazellNo. 10Argued October 13, 1965Decided .January 17, 1966382 U.S. 341SyllabusThe Small Business Administration (SBA) made a disaster loan to Yazell, and to his wife, who is respondent here, following flood damage to their shop in Lampasas, Texas. The loan was individually negotiated. The chattel mortgage which secured the loan specifically made reference to Texas law in several respects. After default by the Yazells on the note, and foreclosure of the mortgage, the Government brought this suit against the Yazells for the deficiency. Respondent, Mrs. Yazell, moved for summary judgment on the ground that, under the Texas law of coverture, she had no capacity to bind herself personally by contract on the facts of this case, and hence the contract could not be enforced against her separate property. During the negotiation of the loan, the SBA had at no time indicated an intention that the Texas law in this regard would not apply, nor had the SBA required respondent to have her disability of coverture removed pursuant to Texas law. The District Court granted the motion for summary judgment, and the Court of Appeals affirmed, against the Government's contention that, even in the absence of any express federal statute or regulation on the matter or any indication in the loan contract itself, questions of capacity to contract with the SBA and to subject property to liability on such a contract are governed by federal, and not local, law, and that federal law should not recognize the state coverture doctrine.Held: There is no federal interest which requires that the local law be overridden in this case in order that the Federal Government be enabled to collect in supervention of the state law of coverture. It is not necessary to decide whether the state law applies by reason of adoption by federal law or ex proprio vigore. Pp. 382 U. S. 345-358.(a) This was"a custom-made, hand-tailored, specifically negotiated transaction. It was not a nationwide act of the Federal Government, emanating in a single form from a single source."Pp. 382 U. S. 345-348.(b) In the absence of specific provision in the federal statute or regulation, or in the contract itself, the federal interest in the collection of an amount due on a contract individually negotiated Page 382 U. S. 342 by a federal agency does not justify displacing state law in the peculiarly local field of family and family property rights and immunities. Pp. 382 U. S. 348-349.(c) The right of the Federal Government to choose those with whom it contracts is not involved. Pp. 382 U. S. 349-350.(d) State interests where family and family property arrangements are involved should not be overridden by federal courts unless substantial national interests will be significantly impaired by application of the state law. Pp. 382 U. S. 351-353.(e) Where federal judge-made law has been created to supersede substantive state law, the federal interest has reflected a need, such as the necessity for uniform national application, for such supersession. Clearfield Trust Co. v. United States, 318 U. S. 363, distinguished. Pp. 382 U. S. 353-354.(f) This Court has, where appropriate, adopted state rules of law as the federal law to be applied, despite the consequent diversity in the rights and obligations of the United States in the different States. Pp. 382 U. S. 354-357.334 F.2d 454, affirmed. |
399 | 1982_81-2101 | JUSTICE POWELL delivered the opinion of the Court.This case presents the question whether a federal court may award injunctive relief against state officials on the basis of state law. Page 465 U. S. 92IThis litigation, here for the second time, concerns the conditions of care at petitioner Pennhurst State School and Hospital, a Pennsylvania institution for the care of the mentally retarded. See Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981). Although the litigation's history is set forth in detail in our prior opinion, see id. at 451 U. S. 5-10, it is necessary for purposes of this decision to review that history.This suit originally was brought in 1974 by respondent Terri Lee Halderman, a resident of Pennhurst, in the District Court for the Eastern District of Pennsylvania. Ultimately, plaintiffs included a class consisting of all persons who were or might become residents of Pennhurst; the Pennsylvania Association for Retarded Citizens (PARC); and the United States. Defendants were Pennhurst and various Pennhurst officials; the Pennsylvania Department of Public Welfare and several of its officials; and various county commissioners, county mental retardation administrators, and other officials of five Pennsylvania counties surrounding Pennhurst. Respondents' amended complaint charged that conditions at Pennhurst violated the class members' rights under the Eighth and Fourteenth Amendments; § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 U.S.C. § 794; the Developmentally Disabled Assistance and Bill of Rights Act, 89 Stat. 496, 42 U.S.C. § 6001 et seq.; and the Pennsylvania Mental Health and Mental Retardation Act of 1966 (MH/MR Act), Pa.Stat.Ann., Tit. 50, §§ 4101-4704 (Purdon 1969 and Supp.1983-1984). Both damages and injunctive relief were sought.In 1977, following a lengthy trial, the District Court rendered its decision. Halderman v. Pennhurst State School and Hospital, 446 F. Supp. 1295. As noted in our prior opinion, the court's findings were undisputed:"Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate Page 465 U. S. 93 for the 'habilitation' of the retarded. Indeed, the court found that the physical, intellectual, and emotional skills of some residents have deteriorated at Pennhurst."451 U.S. at 451 U. S. 7 (footnote omitted). The District Court held that these conditions violated each resident's right to "minimally adequate habilitation" under the Due Process Clause and the MH/MR Act, see 446 F. Supp. at 1314-1318, 1322-1323; "freedom from harm" under the Eighth and Fourteenth Amendments, see id. at 1320-1321; and "nondiscriminatory habilitation" under the Equal Protection Clause and § 504 of the Rehabilitation Act, see id. at 1321-1324. Furthermore, the court found that"due process demands that, if a state undertakes the habilitation of a retarded person, it must do so in the least restrictive setting consistent with that individual's habilitative needs."Id. at 1319 (emphasis added). After concluding that the large size of Pennhurst prevented it from providing the necessary habilitation in the least restrictive environment, the court ordered that "immediate steps be taken to remove the retarded residents from Pennhurst." Id. at 1325. Petitioners were ordered "to provide suitable community living arrangements" for the class members, id. at 1326, and the court appointed a Special Master "with the power and duty to plan, organize, direct, supervise and monitor the implementation of this and any further Orders of the Court." Ibid. [Footnote 1]The Court of Appeals for the Third Circuit affirmed most of the District Court's judgment. Halderman v. Pennhurst State School and Hospital, 612 F.2d 84 (1979) (en banc). It agreed that respondents had a right to habilitation in the least restrictive environment, but it grounded this right solely on the "bill of rights" provision in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010. See 612 F.2d at 95-100, 104-107. The court did Page 465 U. S. 94 not consider the constitutional issues or § 504 of the Rehabilitation Act, and while it affirmed the District Court's holding that the MH/MR Act provides a right to adequate habilitation, see id. at 100-103, the court did not decide whether that state right encompassed a right to treatment in the least restrictive setting.On the question of remedy, the Court of Appeals affirmed except as to the District Court's order that Pennhurst be closed. The court observed that some patients would be unable to adjust to life outside an institution, and it determined that none of the legal provisions relied on by respondents precluded institutionalization. Id. at 114-115. It therefore remanded for "individual determinations by the [District Court], or by the Special Master, as to the appropriateness of an improved Pennhurst for each such patient," guided by "a presumption in favor of placing individuals in [community living arrangements]." Ibid. [Footnote 2]On remand, the District Court established detailed procedures for determining the proper residential placement for each patient. A team consisting of the patient, his parents or guardian, and his case manager must establish an individual habilitation plan providing for habilitation of the patient in a designated community living arrangement. The plan is subject to review by the Special Master. A second master, called the Hearing Master, is available to conduct hearings, upon request by the resident, his parents, or his advocate, on the question whether the services of Pennhurst would be more beneficial to the resident than the community living arrangement provided in the resident's plan. The Hearing Master then determines where the patient should reside, Page 465 U. S. 95 subject to possible review by the District Court. See App. 123a-134a (Order of Apr. 24, 1980). [Footnote 3]This Court reversed the judgment of the Court of Appeals, finding that 42 U.S.C. § 6010 did not create any substantive rights. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981). We remanded the case to the Court of Appeals to determine if the remedial order could be supported on the basis of state law, the Constitution, or § 504 of the Rehabilitation Act. See id. at 451 U. S. 31. [Footnote 4] We also remanded for consideration of whether any relief was available under other provisions of the Developmentally Disabled Assistance and Bill of Rights Act. See id. at 451 U. S. 27-30 (discussing 42 U.S.C. § 6011(a), 6063(b)(5) (1976 ed., Supp. V)).On remand, the Court of Appeals affirmed its prior judgment in its entirety. 673 F.2d 647 (1982) (en banc). It determined that, in a recent decision, the Supreme Court of Pennsylvania had "spoken definitively" in holding that the MH/MR Act required the State to adopt the "least restrictive environment" approach for the care of the mentally retarded. Id. at 651 (citing In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981)). The Court of Appeals concluded that this state statute fully supported its prior judgment, and therefore did not Page 465 U. S. 96 reach the remaining issues of federal law. It also rejected petitioners' argument that the Eleventh Amendment barred a federal court from considering this pendent state law claim. The court noted that the Amendment did not bar a federal court from granting prospective injunctive relief against state officials on the basis of federal claims, see 673 F.2d at 656 (citing Ex parte Young, 209 U. S. 123 (1908)), and concluded that the same result obtained with respect to a pendent state law claim. It reasoned that, because Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909), an important case in the development of the doctrine of pendent jurisdiction, also involved state officials, "there cannot be . . . an Eleventh Amendment exception to that rule." 673 F.2d at 658. [Footnote 5] Finally, the court rejected petitioners' argument that it should have abstained from deciding the state law claim under principles of comity, see id. at 659-660, and refused to consider petitioners' objections to the District Court's use of a Special Master, see id. at 651, and n. 10. Three judges dissented in part, arguing that, under principles of federalism and comity, the establishment of a Special Master to supervise compliance was an abuse of discretion. See id. at 662 (Seitz, C.J., joined by Hunter, J., dissenting in part); ibid. (Garth, J., concurring in part and dissenting as to relief). See also id. at 661 (Aldisert, J., concurring) (seriously questioning the propriety of the order appointing the Special Page 465 U. S. 97 Master, but concluding that a retroactive reversal of that order would be meaningless). [Footnote 6]We granted certiorari, 457 U.S. 1131 (1982), and now reverse and remand.IIPetitioners raise three challenges to the judgment of the Court of Appeals: (i) the Eleventh Amendment prohibited the District Court from ordering state officials to conform their conduct to state law; (ii) the doctrine of comity prohibited the District Court from issuing its injunctive relief; and (iii) the District Court abused its discretion in appointing two Masters to supervise the decisions of state officials in implementing state law. We need not reach the latter two issues, for we find the Eleventh Amendment challenge dispositive.AArticle III, § 2, of the Constitution provides that the federal judicial power extends, inter alia, to controversies "between a State and Citizens of another State." Relying on this language, this Court in 1793 assumed original jurisdiction over a suit brought by a citizen of South Carolina against the State of Georgia. Chisholm v. Georgia, 2 Dall. 419 (1793). The decision "created such a shock of surprise that the Eleventh Amendment was at once proposed and adopted." Monaco v. Mississippi, 292 U. S. 313, 292 U. S. 325 (1934). The Amendment provides:"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. "Page 465 U. S. 98The Amendment's language overruled the particular result in Chisholm, but this Court has recognized that its greater significance lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III. Thus, in Hans v. Louisiana, 134 U. S. 1 (1890), the Court held that, despite the limited terms of the Eleventh Amendment, a federal court could not entertain a suit brought by a citizen against his own State. After reviewing the constitutional debates concerning the scope of Art. III, the Court determined that federal jurisdiction over suits against unconsenting States "was not contemplated by the Constitution when establishing the judicial power of the United States." Id. at 134 U. S. 15. See Monaco v. Mississippi, supra, at 292 U. S. 322-323. [Footnote 7] In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III:"That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but Page 465 U. S. 99 an exemplification."Ex parte State of New York, 256 U. S. 490, 256 U. S. 497 (1921) (emphasis added). [Footnote 8]A sovereign's immunity may be waived, and the Court consistently has held that a State may consent to suit against it in federal court. See, e.g., Clark v. Barnard, 108 U. S. 436, 108 U. S. 447 (1883). We have insisted, however, that the State's consent be unequivocally expressed. See, e.g., Edelman v. Jordan, 415 U. S. 651, 415 U. S. 673 (1974). Similarly, although Congress has power with respect to the rights protected by the Fourteenth Amendment to abrogate the Eleventh Amendment immunity, see Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), we have required an unequivocal expression of congressional intent to "overturn the constitutionally guaranteed immunity of the several States." Quern v. Jordan, 440 U. S. 332, 440 U. S. 342 (1979) (holding that 42 U.S.C. § 1983 does not override States' Eleventh Amendment immunity). Our reluctance to infer that a State's immunity from suit in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system. A State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued. [Footnote 9] As JUSTICE MARSHALL well has noted,"[b]ecause Page 465 U. S. 100 of the problems of federalism inherent in making one sovereign appear against its will in the courts of the other, a restriction upon the exercise of the federal judicial power has long been considered to be appropriate in a case such as this."Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S. 279, 411 U. S. 294 (1973) (concurring in result). [Footnote 10] Accordingly, in deciding this case we must be guided by "[t]he principles of federalism that inform Eleventh Amendment doctrine." Hutto v. Finney, 437 U. S. 678, 437 U. S. 691 (1978).BThis Court's decisions thus establish that "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state." Employees, supra, at 411 U. S. 280. There may be a question, however, whether a particular suit in fact is a suit against a State. It is clear, of course, that, in the absence of consent, a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. See, e.g., Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Assn., 450 U. S. 147 (1981) (per curiam); Alabama v. Pugh, 438 U. S. 781 (1978) (per curiam). This jurisdictional bar applies regardless of the nature of the relief sought. See, e.g., Missouri v. Fiske, 290 U. S. 18, 290 U. S. 27 (1933) ("Expressly applying Page 465 U. S. 101 to suits in equity as well as at law, the Amendment necessarily embraces demands for the enforcement of equitable rights and the prosecution of equitable remedies when these are asserted and prosecuted by an individual against a State").When the suit is brought only against state officials, a question arises as to whether that suit is a suit against the State itself. Although prior decisions of this Court have not been entirely consistent on this issue, certain principles are well established. The Eleventh Amendment bars a suit against state officials when "the state is the real, substantial party in interest." Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459, 323 U. S. 464 (1945). See, e.g., In re Ayers, 123 U. S. 443, 123 U. S. 487-492 (1887); Louisiana v. Jumel, 107 U. S. 711, 107 U. S. 720-723, 107 U. S. 727-728 (1883). Thus,"[t]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter."Hawaii v. Gordon, 373 U. S. 57, 373 U. S. 58 (1963) (per curiam). [Footnote 11] And, as when the State itself is named as the Page 465 U. S. 102 defendant, a suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief. See Cory v. White, 457 U. S. 85, 457 U. S. 91 (1982).The Court has recognized an important exception to this general rule: a suit challenging the constitutionality of a state official's action is not one against the State. This was the holding in Ex parte Young, 209 U. S. 123 (1908), in which a federal court enjoined the Attorney General of the State of Minnesota from bringing suit to enforce a state statute that allegedly violated the Fourteenth Amendment. This Court held that the Eleventh Amendment did not prohibit issuance of this injunction. The theory of the case was that an unconstitutional enactment is "void," and therefore does not "impart to [the officer] any immunity from responsibility to the supreme authority of the United States." Id. at 209 U. S. 160. Since the State could not authorize the action, the officer was "stripped of his official or representative character and [was] subjected in his person to the consequences of his individual conduct." Ibid. .While the rule permitting suits alleging conduct contrary to "the supreme authority of the United States" has survived, the theory of Young has not been provided an expansive interpretation. Thus, in Edelman v. Jordan, 415 U. S. 61 (1974), the Court emphasized that the Eleventh Amendment bars some forms of injunctive relief against state officials for violation of federal law. Id. at 415 U. S. 666-667. In particular, Edelman held that, when a plaintiff sues a state official alleging a violation of federal law, the federal court Page 465 U. S. 103 may award an injunction that governs the official's future conduct, but not one that awards retroactive monetary relief. Under the theory of Young, such a suit would not be one against the State, since the federal law allegation would strip the state officer of his official authority. Nevertheless, retroactive relief was barred by the Eleventh Amendment.IIIWith these principles in mind, we now turn to the question whether the claim that petitioners violated state law in carrying out their official duties at Pennhurst is one against the State, and therefore barred by the Eleventh Amendment. Respondents advance two principal arguments in support of the judgment below. [Footnote 12] First, they contend that, under the doctrine of Edelman v. Jordan, supra, the suit is not against Page 465 U. S. 104 the State because the courts below ordered only prospective injunctive relief. Second, they assert that the state law claim properly was decided under the doctrine of pendent jurisdiction. Respondents rely on decisions of this Court awarding relief against state officials on the basis of a pendent state law claim. See, e.g., Siler v. Louisville & Nashville R. Co., 213 U.S. at 213 U. S. 193.We first address the contention that respondents' state law claim is not barred by the Eleventh Amendment because it seeks only prospective relief as defined in Edelman v. Jordan, supra. The Court of Appeals held that, if the judgment below rested on federal law, it could be entered against petitioner state officials under the doctrine established in Edelman and Young even though the prospective financial burden was substantial and ongoing. [Footnote 13] See 673 F.2d at 656. The court assumed, and respondents assert, that this reasoning applies as well when the official acts in violation of state law. This argument misconstrues the basis of the doctrine established in Young and Edelman.As discussed above, the injunction in Young was justified, notwithstanding the obvious impact on the State itself, on the view that sovereign immunity does not apply because an official who acts unconstitutionally is "stripped of his official or representative character," Young, 209 U.S. at 209 U. S. 160. This Page 465 U. S. 105 rationale, of course, created the "well-recognized irony" that an official's unconstitutional conduct constitutes state action under the Fourteenth Amendment, but not the Eleventh Amendment. Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670, 458 U. S. 685 (1982) (opinion of STEVENS, J.). Nonetheless, the Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to "the supreme authority of the United States." Young, supra, at 209 U. S. 160. As JUSTICE BRENNAN has observed,"Ex parte Young was the culmination of efforts by this Court to harmonize the principles of the Eleventh Amendment with the effective supremacy of rights and powers secured elsewhere in the Constitution."Perez v. Ledesma, 401 U. S. 82, 401 U. S. 106 (1971) (concurring in part and dissenting in part). Our decisions repeatedly have emphasized that the Young doctrine rests on the need to promote the vindication of federal rights. See, e.g., Quern v. Jordan, 440 U.S. at 440 U. S. 337; Scheuer v. Rhodes, 416 U. S. 232, 416 U. S. 237 (1974); Georgia Railroad & Banking Co. v. Redwine, 342 U. S. 299, 342 U. S. 304 (1952).The Court also has recognized, however, that the need to promote the supremacy of federal law must be accommodated to the constitutional immunity of the States. This is the significance of Edelman v. Jordan, supra. We recognized that the prospective relief authorized by Young"has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely a shield, for those whom they were designed to protect."415 U.S. at 415 U. S. 664. But we declined to extend the fiction of Young to encompass retroactive relief, for to do so would effectively eliminate the constitutional immunity of the States. Accordingly, we concluded that, although the difference between permissible and impermissible relief "will not in many instances be that between day and night," 415 U.S. at 415 U. S. 667, an award of retroactive relief necessarily"'fall[s] afoul of the Eleventh Amendment Page 465 U. S. 106 if that basic constitutional provision is to be conceived of as having any present force.'"Id. at 415 U. S. 665 (quoting Rothstein v. Wyman, 467 F.2d 226, 237 (CA2 1972) (McGowan, J., sitting by designation), cert. denied, 411 U.S. 921 (1973)). In sum, Edelman's distinction between prospective and retroactive relief fulfills the underlying purpose of Ex parte Young, while at the same time preserving to an important degree the constitutional immunity of the States.This need to reconcile competing interests is wholly absent, however, when a plaintiff alleges that a state official has violated state law. In such a case, the entire basis for the doctrine of Young and Edelman disappears. A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment. We conclude that Young and Edelman are inapplicable in a suit against state officials on the basis of state law.BThe contrary view of JUSTICE STEVENS' dissent rests on fiction, is wrong on the law, and, most important, would emasculate the Eleventh Amendment. [Footnote 14] Under his view, an allegation that official conduct is contrary to a state statute would suffice to override the State's protection under that Amendment. The theory is that such conduct is contrary to the official's "instructions," and thus ultra vires his authority. Page 465 U. S. 107 Accordingly, official action based on a reasonable interpretation of any statute might, if the interpretation turned out to be erroneous, [Footnote 15] provide the basis for injunctive relief against the actors in their official capacities. In this case, where officials of a major state department, clearly acting within the scope of their authority, were found not to have improved conditions in a state institution adequately under state law, the dissent's result would be that the State itself has forfeited its constitutionally provided immunity.The theory is out of touch with reality. The dissent does not dispute that the general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought. See supra at 465 U. S. 101; post at 465 U. S. 146, n. 29. According to the dissent, the relief sought and ordered here -- which in effect was that a major state institution be closed and smaller state institutions be created and expansively funded -- did not operate against the State. This view would make the law a pretense. No other court or judge in the 10-year history of this litigation has advanced this theory. And the dissent's underlying view that the named defendants here were acting beyond and contrary to their authority cannot be reconciled with reality -- or with the record. The District Court in this case held that the individual defendants "acted in the utmost good faith . . . within the sphere of their official responsibilities," and therefore were entitled to immunity from damages. 446 F. Supp. at 1324 (emphasis added). The named defendants had nothing to gain personally from their conduct; they were not found to have acted willfully or even negligently. See ibid. The court expressly noted that the individual defendants"apparently took every means available to them to reduce the incidents of abuse and injury, but were Page 465 U. S. 108 constantly faced with staff shortages."Ibid. It also found"that the individual defendants are dedicated professionals in the field of retardation who were given very little with which to accomplish the habilitation of the retarded at Pennhurst."Ibid. [Footnote 16] As a result, all the relief ordered by the courts below was institutional and official in character. To the extent Page 465 U. S. 109 there was a violation of state law in this case, it is a case of the State itself not fulfilling its legislative promises. [Footnote 17]The dissent bases its view on numerous cases from the turn of the century and earlier. These cases do not provide the support the dissent claims to find. Many are simply miscited. For example, with perhaps one exception, [Footnote 18] none of its Eleventh Amendment cases can be said to hold that injunctive relief could be ordered against state officials for failing to carry out their duties under state statutes. [Footnote 19] And Page 465 U. S. 110 the federal sovereign immunity cases the dissent relies on for analogy, while far from uniform, make clear that suit may not be predicated on violations of state statutes that command purely discretionary duties. [Footnote 20] Since it cannot be doubted Page 465 U. S. 111 that the statutes at issue here gave petitioners broad discretion in operating Pennhurst, see n 11, supra; see also 446 F. Supp. at 1324, the conduct alleged in this case would not be ultra vires even under the standards of the dissent's cases. [Footnote 21]Thus, while there is language in the early cases that advances the authority-stripping theory advocated by the dissent, this theory had never been pressed as far as JUSTICE STEVENS would do in this case. And when the expansive approach Page 465 U. S. 112 of the dissent was advanced, this Court plainly and explicitly rejected it. In Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682 (1949), the Court was faced with the argument that an allegation that a Government official committed a tort sufficed to distinguish the official from the sovereign. Therefore, the argument went, a suit for an injunction to remedy the injury would not be against the sovereign. The Court rejected the argument, noting that it would make the doctrine of sovereign immunity superfluous. A plaintiff would need only to "claim an invasion of his legal rights" in order to override sovereign immunity. Id. at 337 U. S. 693. In the Court's view, the argument "confuse[d] the doctrine of sovereign immunity with the requirement that a plaintiff state a cause of action." Id. at 337 U. S. 692-693. The dissent's theory suffers a like confusion. [Footnote 22] Under the dissent's view, a plaintiff would need only to claim a denial of rights protected or provided by statute in order to override sovereign immunity. Except in rare cases, it would make the constitutional doctrine of sovereign immunity a nullity. Page 465 U. S. 113The crucial element of the dissent's theory was also the plaintiff's central contention in Larson. It is that "[a] sovereign, like any other principal, cannot authorize its agent to violate the law," so that, when the agent does so ,he cannot be acting for the sovereign. Post at 465 U. S. 153; see also post at 465 U. S. 142, 465 U. S. 148-149, 465 U. S. 158; cf. Larson, supra, at 337 U. S. 693-694 ("It is argued . . . that the commission of a tort cannot be authorized by the sovereign. . . . It is on this contention that the respondent's position fundamentally rests . . ."). It is a view of agency law that the Court in Larson explicitly rejected. [Footnote 23] Larson thus made clear that, at least insofar as injunctive relief is sought, an error of law by state officers acting in their official capacities will not suffice to override the sovereign immunity of the State where the relief effectively is against it. 337 U.S. at 337 U. S. 690, 337 U. S. 695. [Footnote 24] Any resulting disadvantage to the plaintiff was "outweigh[ed]" by "the necessity of permitting the Government Page 465 U. S. 114 to carry out its functions unhampered by direct judicial intervention." Id. at 337 U. S. 704. If anything, this public need is even greater when questions of federalism are involved. See supra at 465 U. S. 99-100. [Footnote 25]The dissent in Larson made many of the arguments advanced by JUSTICE STEVENS dissent today, and asserted that many of the same cases were being overruled or ignored. Page 465 U. S. 115 See 337 U.S. at 337 U. S. 723-728 (Frankfurter, J., dissenting). Those arguments were rejected, and the cases supporting them are moribund. Since Larson was decided in 1949, [Footnote 26] no opinion by any Member of this Court has cited the cases on which the dissent primarily relies for a proposition as broad as the language the dissent quotes. Many, if not most, of these cases have not been relied upon in an Eleventh Amendment context at all. Those that have been so cited have been relied upon only for propositions with which no one today quarrels. [Footnote 27] The plain fact is that the dissent's broad theory, Page 465 U. S. 116 if it ever was accepted to the full extent to which it is now pressed, has not been the law for at least a generation.The reason is obvious. Under the dissent's view of the ultra vires doctrine, the Eleventh Amendment would have force only in the rare case in which a plaintiff foolishly attempts to sue the State in its own name, or where he cannot produce some state statute that has been violated to his asserted injury. Thus, the ultra vires doctrine, a narrow and questionable exception, would swallow the general rule that a suit is against the State if the relief will run against it. That result gives the dissent no pause, presumably because of its view that the Eleventh Amendment and sovereign immunity "undoubtedly ru[n] counter to modern democratic notions of the moral responsibility of the State.'" Post at 465 U. S. 164, n. 48 (quoting Great Northern Life Insurance Co. v. Read, 322 U. S. 47, 322 U. S. 59 (1944) (Frankfurter, J., dissenting)). This argument has not been adopted by this Court. See Great Northern Life Insurance Co. v. Read, supra, at 322 U. S. 51 ("Efforts to force, through suits against officials, performance of promises by a state collide directly with the necessity that a sovereign must be free from judicial compulsion in the carrying out of its policies within the limits of the Constitution"); Larson, 337 U.S. at 337 U. S. 704 ("The Government, as representative of the community as a whole, cannot be stopped in its tracks . . ."). Moreover, the argument substantially misses the point with respect to Eleventh Amendment sovereign immunity. As JUSTICE MARSHALL has observed, the Eleventh Amendment's restriction on the federal judicial power is based in large part on "the problems of federalism inherent in making Page 465 U. S. 117 one sovereign appear against its will in the courts of the other." Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. at 411 U. S. 294 (concurring in result). The dissent totally rejects the Eleventh Amendment's basis in federalism.CThe reasoning of our recent decisions on sovereign immunity thus leads to the conclusion that a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when -- as here -- the relief sought and ordered has an impact directly on the State itself. In reaching a contrary conclusion, the Court of Appeals relied principally on a separate line of cases dealing with pendent jurisdiction. The crucial point for the Court of Appeals was that this Court has granted relief against state officials on the basis of a pendent state law claim. See 673 F.2d at 657-658. We therefore must consider the relationship between pendent jurisdiction and the Eleventh Amendment.This Court long has held generally that, when a federal court obtains jurisdiction over a federal claim, it may adjudicate other related claims over which the court otherwise would not have jurisdiction. See, e.g., Mine Workers v. Gibbs, 383 U. S. 715, 383 U. S. 726 (1966); Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 819-823 (1824). The Court also has held that a federal court may resolve a case solely on the basis of a pendent state law claim, see Siler, 213 U.S. at 213 U. S. 192-193, and that, in fact, the court usually should do so in order to avoid federal constitutional questions, see id. at 213 U. S. 193; Ashwander v. TVA, 297 U. S. 288, 297 U. S. 347 (1936) (Brandeis, J., concurring) ("[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter"). But pendent jurisdiction is a judge-made doctrine inferred from the general language of Art. III. The question presented is whether this doctrine Page 465 U. S. 118 may be viewed as displacing the explicit limitation on federal jurisdiction contained in the Eleventh Amendment.As the Court of Appeals noted, in Siler and subsequent cases concerning pendent jurisdiction, relief was granted against state officials on the basis of state law claims that were pendent to federal constitutional claims. In none of these cases, however, did the Court so much as mention the Eleventh Amendment in connection with the state law claim. Rather, the Court appears to have assumed that, once jurisdiction was established over the federal law claim, the doctrine of pendent jurisdiction would establish power to hear the state law claims as well. The Court has not addressed whether that doctrine has a different scope when applied to suits against the State. This is illustrated by Greene v. Louisville & Interurban R. Co., 244 U. S. 499 (1917), in which the plaintiff railroads sued state officials, alleging that certain tax assessments were excessive under the Fourteenth Amendment. The Court first rejected the officials' argument that the Eleventh Amendment barred the federal constitutional claim. It held that Ex parte Young applied to all allegations challenging the constitutionality of official action, regardless of whether the state statute under which the officials purported to act was constitutional or unconstitutional. See 244 U.S. at 244 U. S. 507. Having determined that the Eleventh Amendment did not deprive the federal court of jurisdiction over the Fourteenth Amendment question, the Court declared that the court's jurisdiction extended"to the determination of all questions involved in the case, including questions of state law, irrespective of the disposition that may be made of the federal question, or whether it be found necessary to decide it at all."Id. at 244 U. S. 508. The case then was decided solely on state law grounds. Accord, Louisville & Nashville R. Co. v. Greene, 244 U. S. 522 (1917). [Footnote 28] Page 465 U. S. 119These cases thus did not directly confront the question before us."[W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us."Hagans v. Lavine, 415 U. S. 528, 415 U. S. 533, n. 5 (1974). [Footnote 29] We therefore view the question as an open one.As noted, the implicit view of these cases seems to have been that, once jurisdiction is established on the basis of a federal question, no further Eleventh Amendment inquiry is necessary with respect to other claims raised in the case. This is an erroneous view, and contrary to the principles established in our Eleventh Amendment decisions. "The Eleventh Amendment is an explicit limitation of the judicial power of the United States." Missouri v. Fiske, 290 U.S. at 290 U. S. 25. It deprives a federal court of power to decide certain claims against States that otherwise would be within the Page 465 U. S. 120 scope of Art. III's grant of jurisdiction. For example, if a lawsuit against state officials under 42 U.S.C. § 1983 alleges a constitutional claim, the federal court is barred from awarding damages against the state treasury even though the claim arises under the Constitution. See Quern v. Jordan, 440 U. S. 332 (1979). Similarly, if a § 1983 action alleging a constitutional claim is brought directly against a State, the Eleventh Amendment bars a federal court from granting any relief on that claim. See Alabama v. Pugh, 438 U. S. 781 (1978) (per curiam). The Amendment thus is a specific constitutional bar against hearing even federal claims that otherwise would be within the jurisdiction of the federal courts. [Footnote 30] This constitutional bar applies to pendent claims as well. As noted above, pendent jurisdiction is a judge-made doctrine of expediency and efficiency derived from the general Art. III language conferring power to hear all "cases" arising under federal law or between diverse parties. See Mine Workers v. Gibbs, 383 U.S. at 383 U. S. 725. See also Hagans v. Lavine, supra, at 415 U. S. 545 (terming pendent jurisdiction "a doctrine of discretion"). The Eleventh Amendment should not be construed to apply with less force to this implied form of jurisdiction than it does to the explicitly granted power to hear federal claims. The history of the adoption and development of the Amendment, see supra at 465 U. S. 97-100, confirms that it is an independent limitation on all exercises of Art. III power:"the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given,"Ex parte State of New York, 256 U.S. at 256 U. S. 497. If we were to hold otherwise, a federal court could award damages against a State on the basis of a pendent claim. Our decision in Page 465 U. S. 121 Edelman v. Jordan makes clear that pendent jurisdiction does not permit such an evasion of the immunity guaranteed by the Eleventh Amendment. We there held that "the District Court was correct in exercising pendent jurisdiction over [plaintiffs'] statutory claim," 415 U.S. at 415 U. S. 653, n. 1, but then concluded that the Eleventh Amendment barred an award of retroactive relief on the basis of that pendent claim. Id. at 415 U. S. 678.In sum, contrary to the view implicit in decisions such as Greene v. Louisville & Interurban R. Co., 244 U. S. 499 (1917), neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment. [Footnote 31] A federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment. We concluded above that a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment. See supra at 465 U. S. 106. We now hold that this principle applies as well to state law claims brought into federal court under pendent jurisdiction.DRespondents urge that application of the Eleventh Amendment to pendent state law claims will have a disruptive effect on litigation against state officials. They argue that the "considerations of judicial economy, convenience, and fairness to litigants" that underlie pendent jurisdiction, see Gibbs, supra, at 383 U. S. 726, counsel against a result that may cause litigants to split causes of action between state and federal courts. They also contend that the policy of avoiding unnecessary constitutional decisions will be contravened if plaintiffs choose to forgo their state law claims and sue only in federal court or, alternatively, that the policy of Ex parte Young Page 465 U. S. 122 will be hindered if plaintiffs choose to forgo their right to a federal forum and bring all of their claims in state court.It may be that applying the Eleventh Amendment to pendent claims results in federal claims being brought in state court, or in bifurcation of claims. That is not uncommon in this area. Under Edelman v. Jordan, supra, a suit against state officials for retroactive monetary relief, whether based on federal or state law, must be brought in state court. Challenges to the validity of state tax systems under 42 U.S.C. § 1983 also must be brought in state court. Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100 (1981). Under the abstention doctrine, unclear issues of state law commonly are split off and referred to the state courts. [Footnote 32] Page 465 U. S. 123In any case, the answer to respondents' assertions is that such considerations of policy cannot override the constitutional limitation on the authority of the federal judiciary to adjudicate suits against a State. See Missouri v. Fiske, 290 U.S. at 290 U. S. 25-26 ("Considerations of convenience open no avenue of escape from the [Amendment's] restriction"). [Footnote 33] That a litigant's choice of forum is reduced "has long been understood to be a part of the tension inherent in our system of federalism." Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. at 411 U. S. 298 (MARSHALL, J., concurring in result).IVRespondents contend that, regardless of the applicability of the Eleventh Amendment to their state claims against petitioner state officials, the judgment may still be upheld against petitioner county officials. We are not persuaded. Even assuming that these officials are not immune from suit challenging their actions under the MH/MR Act, [Footnote 34] it is clear Page 465 U. S. 124 that, without the injunction against the state institutions and officials in this case, an order entered on state law grounds necessarily would be limited. The relief substantially concerns Pennhurst, an arm of the State that is operated by state officials. Moreover, funding for the county mental retardation programs comes almost entirely from the State, see Pa.Stat.Ann., Tit. 50, §§ 4507-4509 (Purdon 1969 and Supp.1983-1984), and the costs of the Masters have been borne by the State, see 446 F. Supp. at 1327. Finally, the MH/MR Act contemplates that the state and county officials will cooperate in operating mental retardation programs. See In re Schmidt, 494 Pa., at 95-96, 429 A.2d at 635-636. In short, the present judgment could not be sustained on the basis of the state law obligations of petitioner county officials. Indeed, any relief granted against the county officials on the basis of the state statute would be partial and incomplete at best. Such an ineffective enforcement of state law would not appear to serve the purposes of efficiency, convenience, and fairness that must inform the exercise of pendent jurisdiction.VThe Court of Appeals upheld the judgment of the District Court solely on the basis of Pennsylvania's MH/MR Act. We hold that these federal courts lacked jurisdiction to enjoin petitioner state institutions and state officials on the basis of Page 465 U. S. 125 this state law. The District Court also rested its decision on the Eighth and Fourteenth Amendments and § 504 of the Rehabilitation Act of 1973. See supra at 465 U. S. 93. On remand, the Court of Appeals may consider to what extent, if any, the judgment may be sustained on these bases. [Footnote 35] The court also may consider whether relief may be granted to respondents under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6011, 6063 (1976 ed. and Supp. V). 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 | U.S. Supreme CourtPennhurst State Sch. v. Halderman, 465 U.S. 89 (1984)Pennhurst State School and Hospital v. HaldermanNo. 81-2101Argued February 22, 1983Reargued October 3, 1983Decided January 23, 1984465 U.S. 89SyllabusRespondent Halderman, a resident of petitioner Pennhurst State School and Hospital, a Pennsylvania institution for the care of the mentally retarded, brought a class action in Federal District Court against Pennhurst, certain of its officials, the Pennsylvania Department of Public Welfare, and various state and county officials (also petitioners). It was alleged that conditions at Pennhurst violated various federal constitutional and statutory rights of the class members as well as their rights under the Pennsylvania Mental Health and Mental Retardation Act of 1966 (MH/MR Act). Ultimately, the District Court awarded injunctive relief based in part on the MH/MR Act, which was held to provide a right to adequate habilitation. The Court of Appeals affirmed, holding that the MH/MR Act required the State to adopt the "least restrictive environment" approach for the care of the mentally retarded, and rejecting petitioners' argument that the Eleventh Amendment barred a federal court from considering this pendent state law claim. The court reasoned that, since that Amendment did not bar a federal court from granting prospective injunctive relief against state officials on the basis of federal claims, citing Ex parte Young, 209 U. S. 123, the same result obtained with respect to a pendent state law claim.Held: The Eleventh Amendment prohibited the District Court from ordering state officials to conform their conduct to state law. Pp. 465 U. S. 97-124.(a) The principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III of the Constitution. The Eleventh Amendment bars a suit against state officials when the State is the real, substantial party in interest, regardless of whether the suit seeks damages or injunctive relief. The Court in Ex parte Young, supra, recognized an important exception to this general rule: a suit challenging the federal constitutionality of a state official's action is not one against the State. Pp. 465 U. S. 97-103.(b) In Edelman v. Jordan, 415 U. S. 651, this Court recognized that the need to promote the supremacy of federal law that is the basis of Young must be accommodated to the constitutional immunity of the States. Thus, the Court declined to extend the Young doctrine to Page 465 U. S. 90 encompass retroactive relief, for to do so would effectively eliminate the States' constitutional immunity. Edelman's distinction between prospective and retroactive relief fulfilled Young's underlying purpose of vindicating the supreme authority of federal law while at the same time preserving to an important degree the States' constitutional immunity. But this need to reconcile competing interests is wholly absent when a plaintiff alleges that a state official has violated state law. In such a case, the entire basis for the doctrine of Young and Edelman disappears. A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. When a federal court instructs state officials on how to conform their conduct to state law, this conflicts directly with the principles of federalism that underlie the Eleventh Amendment. Pp. 465 U. S. 103-106.(c) The dissenters' view is that an allegation that official conduct is contrary to a state statute would suffice to override the State's protection from injunctive relief under the Eleventh Amendment because such conduct is ultra vires the official's authority. This view rests on fiction, is wrong on the law, and would emasculate the Eleventh Amendment. At least insofar as injunctive relief is sought, an error of law by state officers acting in their official capacity will not suffice to override the sovereign immunity of the State where the relief effectively is against it. Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682. Under the dissenters' view, the ultra vires doctrine, a narrow and questionable exception, would swallow the general rule that a suit is against the State if the relief will run against it. Pp. 465 U. S. 106-117.(d) The principle that a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment applies as well to state law claims brought into federal court under pendent jurisdiction. Pp. 465 U. S. 117-121.(e) While it may be that applying the Eleventh Amendment to pendent state law claims results in federal claims' being brought in state court or in bifurcation of claims, such considerations of policy cannot override the constitutional limitation on the authority of the federal judiciary to adjudicate suits against a State. Pp. 465 U. S. 121-123.(f) The judgment below cannot be sustained on the basis of the state law obligation of petitioner county officials, since any relief granted against these officials on the basis of the MH/MR Act would be partial and incomplete, at best. Such an ineffective enforcement of state law would not appear to serve the purposes of efficiency, convenience, and fairness that must inform the exercise of pendent jurisdiction. Pp. 465 U. S. 123-124.673 F.2d 647, reversed and remanded. Page 465 U. S. 91POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, post, p. 465 U. S. 125. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 465 U. S. 126. |
Subsets and Splits